• 

UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 

THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


C.  M.  OAKES, 
Attorney* 


TY^       ^ 


^^e  gorn6ooft  ^erie0 

Ot  elementary  treatises  on  all  the  principal  subjects  of  the  law.    The 
special  features  of  these  books  are  as  follows: 

1.  (^  Euccincf  efafemenf  of  ha^inq  princtpfce  in  fifocfi; 

fetter  fgpc. 

2.  (^  more  erfoibeb  commenfarg,  efuci^ating  f^e  ptindphz. 
3-  (Uofee  an^  aut^ritiee. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 

S}'75  per  tjofume,  tncfubing  ^efit?erg. 

1.  Norton  on  Bills  and  Notes.      {3d Edition.) 

2.  Clark's   Criminal  Law.      (2d  Edition.  ) 

3.  Shipman^s  Cofnmoti- Law  Pleading.      (2d  Edition.) 

4.  Clark  on   Contracts.      (2d  Edition  ) 

5.  Black's  Constitutional  Law.      (2d  Edition. ) 

6.  Fetter  on  Equity. 

7.  Clark  on   Criminal  Procedure. 

8.  Tiffany  on  Sales. 

9.  Glenn's  International  Law. 

10.  Jaggard  on   Torts.      (2  vols.) 

11.  Black  on  Interpretation  of  Laws. 

12.  Hale  on  Bailments  and  Carriers. 

13.  Smith's  Elementary  Law. 

14.  Hale  on  Datnages. 

15.  Hopkins  on  Real  Property. 

1 6.  Hale  on   Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations. 

18.  Croswell  on  Executors  and  Administrators. 

19.  Clark  on   Corporations. 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKelvey  on  Evidence. 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  on  Equity. 

26.  Tiffany  on  Principal  and  Agent. 

27.  Gardner  on   Wills. 

28.  Vance  on  Insurance. 

29.  Ingersoll  on  Public   Corporations. 

30.  Hughes  on  Federal  Jurisdiction  and  Procedure. 


In  preparation:     Handbooks  »f  the  law  on  other  subjects 
to  be  announced  later. 


^fifie^eb  mC^  for  cafe  6p 

nrefit  gf)u6ft6?in5  Co.,  ^t.  Qpduf,  Otinn. 

F8381 


HAND-BOOK 


OF   THE 


LAW  OF   SALES 


By  FRANCIS  B.  TIFFANY 

Author  of  Death  by  Wrongful  Act 


St.  Paul,  Minn. 

WEST  PUBLISHING  CO. 

1895 


COPTRIGHT,  1895, 

BY 

WEST  PUBLISHING  COMPANY. 


PREFACE. 


The  object  of  this  handbook  is  to  present  concisely  the  general 
principles  of  the  law  of  the  sale  of  personal  property.     The  arrange- 
ment is  in  the  main  that  of  Benjamin.     The  statement  of  rules  and 
principles  in  the  black-letter  text  has  to  a  considerable  extent,  though 
with  many  modifications,  necessitated  by  the  differences  between 
the  American  and  English  law,  or  by  other  reasons,  been  taken  from 
the  English  Sale  of  Goods  Bill,  as  drafted  by  his  Honor,  Judge  Chalm- 
ers, and  published  together  with  his  invaluable  notes  under  the 
title  of  "  The  Sale  of  Goods."     This  bill,  which  was  purely  a  codify- 
ing measure,  has  since  been  substantially  enacted  as  "An  act  for 
codifying  the  law  relating  to  the  sale  of  goods"  (56  &  57  Vict.  c.  71; 
February  20,  1894).     The  writer  has  made  frequent  use  both  of 
the  notes  of  Judge  Chalmers  and  of  the  text  of  Benjamin  on  Sales. 
The  references  to  Benjamin  are  to  the  sections  as  found  in  the  sixth 
American  edition,  of  Messrs.  Edmund  H.  and  Samuel  G.  Bennett. 

F.  B.  T. 

St.  Paul,  June  1,  1895. 

BALB8  0'^)* 


-<?    J 


-      h^^if 


TABLE  OF   CONTENTS. 


CHAPTER  I. 


FORMATION  OF  THE  CONTRACT. 

Section  ^8'S« 

1-5.  In    General 1-5 

6.  Capacity  of  Parties 6 

7.  Capacity  of  Infants 6-11 

8.  Capacity  of  Lunatics  and  Drunken  Men 12-14 

9.  Capacity  of  Married  Women 14-16 

10.  Who  May  Sell 16-22 

11-13.  The  Thing  Sold 22-26 

14.  Mutual   Assent 27-30 

15.  Form  of  Contract 31-32 

16-17.  The   Price 32-34 


CHAPTER  n. 

FORMATION  OF  CONTRACT  (Continued)— UNDER  THE  STATUTE  OF 

FRAUDS. 

18-20.    What  Contracts  are  Within  the  Statute 35-43 

21-22.    What  are  Goods,  Wares,  and  Merchandise 43-49 

23.    What  Is  a  Contract  for  the  Price  or  Value  of  £10  ($50) 49-50 

24-26.    Acceptance  and  Receipt 51-53 

27-29.          Acceptance 53-60 

30-31.    Actual  Receipt 60-64 

82-33.    Earnest  or  Part  Payment 64^66 

34-36.    The  Note  or  Memorandum 66-74 

37-38.          Signature  of  the  Party 74-76 

39-40.          Agents  Authorized  to  Sign 76-80 

41.  Effect  of  Noncompliance  with  the  Statute 80-81 

CHAPTER  m. 

EFFECT  OP  THE  CONTRACT  IN  PASSING  THE  PROPERTY— SALE  OF 
SPECIFIC  CHATTEL. 

42.  In  General 82-83 

43.  Sale   Unconditionally 83-84 

BALES  '    (V) 


VI  TABLE    OF    CONTENTS. 

Section  Paf^ 

44.  Rules  for  Aecertalnlng  Intention 85-83 

40.  Conditional  Sale  Accompanied  by  Delivery 89-91 

46.  Sale  on  Trial  or  Approval 91-92 

47.  Sale  or  Return  92-93 


CHAPTER  IV. 

EFFECT  OF  THE  CONTRACT  IN  PASSING  THE  PROPERTY  (Continued) 
—SALE  OP  CHATTEL  NOT  SPECIFIC. 

48-49.    In   General 94-98 

60-53.    Subsequent    Appropriation 97-104 

54-56.    Reservation  of  Right  of  Disposal 104-107 


CHAPTER  V. 

MISTAKE,  FAILURE  OF  CONSIDERATION,  AND  FRAUD. 

57-58.  Mistake    108-109 

59.  Failure  of  Consideration 109-111 

60-61.  Fraud   111-118 

62-66.  Election  to  Affirm  or  Rescind  for  Fraud 119-124 

67-69.  Fraud  on  Creditors 124-128 

70.  How  far  Delivery  is  Essential  to  the  Transfer  of  the  Prop- 
erty against  Creditors  and  Purchasers 128-132 

CHAPTER  VI. 

ILLEGALITY. 

71-72.  In   General 133 

73-75.  Sales  Prohibited  by  Common  Law 134-137 

76.  Sales  Prohibited  by  Public  Policy 137-139 

77.  Sales  Prohibited  by  Statute 139-145 

78-81.  Effect  of  Illegality. 145-148 

82.    Conflict  of  Laws 149 

CHAPTER  VII. 

CONDITIONS  AND  WARRANTIES. 

83-84.    In    General 150-152 

85.    Performance  of  Conditions  Precedent 152-155 

88.    Condition  in  Sale  by  Description 155-157 


TABLE    OF    CONTENTS. 


Vll 


Section  Page 

87-89.  Excuses  for  Nonperformance  of  Conditions 157-161 

90-91.  Warranties   161-162 

92-93.  Express    Warranties 162-164 

94.  Implied  Warranty  of  Title 165-167 

95.  Implied  Warranties  of  Quality 167-177 

CHAPTER  VIII. 

PERFORMANCE  OF  CONTRACT. 

96-97.  In    General 178-179 

98.  Meaning  of   "Delivery" 179-182 

99-100.  Place  and  Time  of  Delivery 182-187 

101-103.  Delivery  of  Wrong  Quantity 187-192 

104.  Delivery   of   Installments 192-195 

105.  Delivery  to  Carrier 195-196 

106.  Duty  to  Insure  Safe  Arrival 196-197 

107.  Buyer's  Right  of  Examination 197-198 

108.  Acceptance  198-200 

109-110.    Payment   200-203 

CHAPTER  IX. 

RIGHTS  OP  UNPAID  SELLER  AGAINST  THE  GOODS. 

111.  In   General 204 

112-116.  Seller's   Lien 204-213 

117-121.  Stoppage  in  Transitu 213-226 

122.  Right  of  Resale 226-230 

CHAPTER  X. 


ACTION  FOR  BREACH  OP  THE  CONTRACT. 

123-124.    Remedies  of  Seller— Where  Property  has  not  Passed 231-232 

125.  Measure  of  Damages  for  Nonacceptance 232-233 

126.  Where  Property  has  Passed 233-234 

127.  Remedies  of  the  Buyer— Action  for  Nondelivery 235 

128.  Measure  of  Damages 235-240 

129.  Specific    Performance 240-241 

130.  Action  for  Conversion 241-242 

131.  Breach  of  Warranty  of  Quality— Right  to  Reject 242 

132.  Rights  after  Acceptance 243-244 

133.  Measure  of  Damages  for  Breach  of  Warranty 244-250 

t 


HANDBOOK 


OF   THE 


LAW  OF  SALES. 


CHAPTER  I. 

FORMATION  OF  THE  CONTRACT. 

1-5.  In  General. 

6.  Capacity  of  Parties. 

7.  Capacity  of  Infants. 

8.  Capacity  of  Lunatics  and  Drunken  Men. 

9.  Capacity  of  Married  Women. 
10.  Who  May  Sell. 

11-13.  The  Thing  Sold. 

14.  Mutual  Assent. 

15.  Form  of  Contract 
1&-17.  The  Price. 

IN  GENERAL. 

1.  SALE  DEFINED— A  sale  is  the  transfer  of  the  prop- 
erty in  a  thing  for  a  price  in  money.  ^ 

1  The  following  are  some  of  the  definitions  of  "sale":  "A  transmutation  of 
property  from  one  man  to  another  in  consideration  of  some  price."  2  Bl.  Comm. 
446.  "A  contract  for  the  transfer  of  property  from  one  person  to  another  for 
a  valuable  consideration."  2  Kent,  Comm.  (12th  Ed.)  468.  "A  transfer  of  the 
absolute  or  general  property  in  a  thing  for  a  price  in  money."  Benj.  Sales  (6th 
Am.  Ed.)  §  1.  "Sale  is  the  exchange  of  property  for  a  price.  It  involves  the 
transfer  of  the  ownership  of  the  thing  sold  from  the  seller  to  the  buyer." 
Indian  Contract  Act  1872,  §  77.  "Sale  is  an  exchange  of  property  for  a  price 
In  money.  It  involves  the  transfer  of  the  ownership  of  the  thing  sold  by  the 
seller  to  the  buyer."  Kerr,  Dig.  Law  Sale,  §  2.  See  Blackb.  Sales,  Introduc- 
tion; Chalm.  Sale,  §  1;  Williamson  v.  Berry,  8  How.  544. 

SALES — 1 


2  FORMATION  OF   THE   CONTRACT.  [Ch.    1 

2.  HOW  EFFECTED— The  sale  of  personal  property  is 
effected  by  a  contract  of  sale. 

3.  EXECUTED  CONTRACT  — A  contract  whereby  the 
owner  t^the  seller;  of  the  thing  which  is  the  subject-matter 
of  the  contract  and  another  person  (the  buyer)  agree  that 
the  property  in  the  thing  is  transferred  from  the  seller  to 
the  buyer,  for  a  price  in  money  which  the  buyer  pays  or 
agrees  to  pay,  is  called  a  "bargain  and  sale,"  a  "sale,"  or 
an  "executed  contract  of  sale." 

4.  EXECUTORY  CONTRACT— A  contract  whereby  the 
seller  and  the  buyer  agree  that  the  property  in  the  thing 
shall  be  transferred  to  the  buyer  at  a  future  time  or  on 
the  performance  of  a  condition,  for  a  price  in  money  w^hich 
the  buyer  pays,  or  agrees  to  pay,  is  called  an  "  executory 
contract  of  sale." 

6.  ELEMENTS  OF  CONTRACT  — To  constitute  a  sale 
there  must  be: 

(a)  Parties  (seller  and  buyer)  competent  to  contract. 

(b)  A  thing,  the  property  in  w^hich  is  in  the  seller. 

(c)  An  agreement  by  the  parties  that  the  property  in 

the  thing  is   transferred  from   the   seller  to  the 
buyer. 

(d)  Payment,  or  an  agreement  for  payment,  of  a  price 

in  money  by  the  buyer  to  the  seller, 

•Vistinguishing  Features  of  Sale. 

The  essence  of  a  sale  is  the  transfer  of  the  property  in  the  thing 
from  seller  to  buyer  for  a  price.  The  elements  which  distinguish 
a  sale  from  other  transfers  are  (1)  that  the  transfer  is  of  the  prop 
erty,  and  (2)  that  it  is  for  a  price. 

The  transfer  must  be  of  the  general  property  or  ownership,  as 
distinguished  from  a  special  property,^  or  from  the  right  to  posses- 
sion; for  the  general  property  may  be  in  one  person,  and  a  special 

2  As  to  the  distinction  between  "thie"  property  (that  Is,  the  general  property) 
and  "a"  property  (that  is,  a  special  property),  see  Burdlck  v.  Sewell,  13  Q.  B. 
Oiv.  at  page  175,  10  App.  Cas.,  at  page  93. 


Ch.   1]  IN    GENERAL.  3 

property  in  another.  Thus,  in  the  case  of  a  pledge  the  pledgee  has 
only  a  special  property,  and  the  general  property  remains  in  the 
pledgor,'  who  can  transfer  the  general  property  to  a  third  person, 
subject  to  the  special  property  in  the  pledgee.*  Again,  the  en- 
tire right  of  property  may  be  in  one  person,  while  the  right  to 
possession  may  be  in  another.  Thus,  a  man  may  sell  goods,  and 
retain  a  lien  for  their  price. "^  It  is  transfer  of  ownership  which 
distinguishes  a  sale  from  a  bailment,  of  which  a  pledge  is  only  an 
example.  In  a  bailment,  at  most,  only  a  special  property  passes  to 
the  bailee,  who  receives  possession  for  a  special  purpose,  and  is 
bound  to  return  the  thing  received;®    or,  as  in  the  case  of  a  con- 

8  Halliday  v.  Holgate,  L.  R.  3  Exch.  299;  Donald  v.  Suckling,  L.  R.  1  Q.  B. 
585;  Hai-per  v.  Godsell,  L.  R.  5  Q.  B.  424;  Cortelyou  v.  Lansing,  2  Gaines, 
Gas.  (N.  Y.)  200.  A  chattel  mortgage  differs  from  a  pledge  in  that  by  a  mort- 
gage the  general  title  is  transferred.  Jones,  Ghat.  Mortg.  §  4.  It  differs  from  a 
sale  in  that  the  transfer  is  defeasible  on  performance  of  the  condition.  Jones, 
Chat.  Mortg.  §  8.  Ex  parte  Hubbard,  17  Q.  B.  Div.,  at  page  698;  In  re  Morritt, 
18  Q.  B.  Div.,  at  page  232;  Jones  v.  Baldwin,  12  Picli.  316;  Parshall  v.  Eggart, 
52  Barb.  367. 

*  Franklin  v.  Neate,  13  Mees.  &  W.  481;  Jenkyns  v.  Brown,  14  Q.  B.  496; 
Whitaker  v.  Sumner,  20  Pick.  399. 

B  Post,  p.  204  et  seq. 

6  The  general  test  of  bailment  or  sale  is  whether  or  not  it  Is  the  intention  of 
the  parties  that  the  thing  received  shall  be  retunied.  If  the  identical  thing  Is 
to  be  returned,  though  in  altered  form,  as  in  the  case  of  logs  to  be  made  into 
boards,  leather  into  shoes,  or  wheat  into  flour,  the  transaction  is  a  bailment. 
Pierce  v.  Schenck,  3  Hill,  28;  Foster  v.  Pettibone,  7  N.  Y.  433;  Westcott  v. 
Thompson,  18  N.  Y.  363;  Eldridge  v.  Benson,  7  Gush.  483;  Mansfield  v.  Con- 
verse, 8  Allen,  182;  Schenck  v.  Saunders,  13  Gray,  37;  Barker  v.  Roberts,  8 
Greenl.  (Me.)  101;  Brown  v.  Hitchcock,  28  Vt.  452;  Bulkley  v.  Andrews,  39 
Gonn.  70;  Irons  v.  Kentner,  51  Iowa,  88,  50  N.  W.  73.  But,  if  the  identical 
thing  is  not  to  be  returned,  it  is  a  sale  or  an  exchange,  according  to  the  nature 
.  of  the  consideration.  South  Australian  Ins.  Co.  v.  Randell,  L.  R.  3  P.  C.  101; 
Powder  Co.  v.  Burkhardt,  97  U.  S.  110;  Sturm  v.  Boker,  150  U.  S.  330,  14  Sup. 
Gt.  99;  McCabe  v.  McKinstry,  5  Dill.  509,  Fed.  Gas.  No.  8,667;  Ewing  v. 
French,  1  Blackf.  354;  Smith  v.  Clark,  21  Wend.  83;  Norton  v.  Woodruff,  2 
N.  Y.  153;  Crosby  v.  Delaware  &  H.  Canal  Co.,  119  N.  Y.  334,  23  N.  E.  736; 
Chase  v.  Washburn,  1  Ohio  St.  244;  Butterfield  v.  Lathrop,  71  Pa,  St  225; 
Bailey  v.  Bensley,  87  III.  556;  Jones  v.  Kemp,  49  Mich.  9,  12  N.  W.  890; 
Woodward  v.  Semans,  125  Ind.  330,  25  N.  E.  444;  Fishback  v.  Van  Dusen,  33 
Minn.  Ill,  22  N.  W.  244;    Barnes  y.  McCrea,  75  Iowa,  267,  39  N.  W.  392; 


4  FORMATION    OF   THE    CONTRACT.  [Ch.    1 

signment,  to  dispose  of  the  thing  aceordiug  to  his  agreement  with 
the  consignor.'' 

The  transfer  must  be  for  a  price  in  money;  for  if  there  be  no 
valuable  consideration  the  transfer  is  a  gift,"  and  if  the  considera- 
tion consists  of  other  goods  the  transfer  is  an  exchange  or  a  barter.* 
The  legal  effect  of  a  contract  of  exchange  is,  however,  generally 
the  same  as  that  of  a  contract  of  sale.^° 

Chickering  v.  Bastress,  130  111.  206,  22  N.  E.  542;  Reherd's  Adm'r  v.  Clem,  8G 
Va.  374,  10  S.  E.  504.  Of  course,  the  transaction  need  not  be  either  a  sale  or 
a  bailment,  but  may  create  still  other  rights,  according  to  the  contract  of  the 
parties.  A  difiioult  case,  which  need  not  here  be  discussed,  arises  whtu-u  grain 
Is  deposited  in  an  elevator  or  storehouse  on  an  understanding,  express  or  im- 
plied, that  the  warehouseman  may  mix  it  with  the  grain  of  other  persons,  and 
draw  from  the  mass  to  meet  the  orders  of  receipt  holders.  See  Benj.  Sales 
(6th  Ed.)  Bennett's  note,  p.  6;  Chase  v.  Washburn,  6  Am.  Law  Rev.  450;  2 
Kent,  Comm.  590. 

7  Ayres  v.  Sleeper.  7  Mete.  (Mass.)  45;  Brown  v.  Holbrook,  4  Gray  (Mass.) 
102;  Blood  v.  Palmer,  11  Me.  414;  Morss  v.  Stone,  5  Barb.  516;  Pam  v.  Vil- 
mar,  54  How.  Prac.  235;  Conable  v.  Lynch,  45  Iowa,  84. 

8  Benj.  Sales.  §  2. 

»  Harrison  v.  Luke,  14  Mees.  &  W.  139;  Read  v.  Hutchinson,  3  Camp.  352; 
Williamson  v.  Berry,  8  How.  495,  544;  Mitchell  v.  Gile,  12  N.  H.  390;  Fuller 
V.  Duren,  36  Ala.  73;   Bowling  v.  McKenney,  124  Mass.  480. 

10  Com.  V.  Clark,  14  Gray,  367,  per  Bigelow,  J.,  372.  See  Emanuel  v.  Dane, 
3  Camp.  209  (Warranty);  La  Neuville  v.  Nourse,  Id.  351  (Caveat  Emptor); 
Chalm.  Sale,  p.  87;  Benj.  Sales  (Gth  Am.  Ed.)  §  2.  The  principal  difference 
is  in  respect  to  the  form  of  pleading  and  the  measure  of  damages,  since  in  the 
case  of  an  exchange  the  declaration  must  be  for  damages  for  broach  of  the 
special  agreement,  and  not  In  assumpsit  for  goods  sold,  or  goods  sold  and  de- 
2ivered.  Harris  v.  Fowle,  cited  in  Barbe  v.  Parker,  1  H.  Bl.  287;  Mitchell  v. 
Gile,  12  N.  n.  390;  Vail  v.  Strong,  10  Vt.  457;  Slayton  v.  McDonald,  73  Me. 
50.  Otherwise  where  the  contract  of  exchange  is  for  goods  at  a  stipulated 
price,  Forsyth  v.  Jervis,  1  Starkie,  437;  Hands  v.  Burton,  9  East,  349;  Harri- 
son V.  Luke,  14  Mees.  &  W.  139;  Way  v.  Wakefield,  7  Vt.  228;  Picard  v.  Mc- 
Cormick,  11  Mich.  69;  or  wlicre  the  exchange  is  only  partly  for  goods,  and  the 
action  is  to  recover  the  money  balance  after  delivery  of  the  goods,  Sheldon  v. 
Cox,  3  Bam.  &  C.  420.  An  exchange  has,  however,  been  held  to  be  a  sale, 
within  the  meaning  of  a  statute  prohibiting  the  sale  of  liquor,  Howard  v.  Har- 
ris, 8  Allen,  297;  Com.  v.  Clark,  14  Gray,  367;  but  not  within  the  meaning  of 
a  statute  declaring  Illegal  the  sale  of  a  slave  by  a  trader  without  a  license, 
(lUnter  v.  Leckey,  30  Ala.  .596.  And  proof  of  barter  lias  been  held  not  to  sup- 
port an  indictment  charging  sale  of  liquor.    Steven.sou  v.  State,  65  Ind.  409; 


Ch.    1]  IN    GENERAL.  6 

Sale  of  Personal  Property  Effected  by  Contract. 

At  common  law  the  sale  of  personal  property,  unlike  that  of  real 
property,  is  effected  by  the  mere  contract  or  agreement,  verbal  or 
written,  of  the  parties.  If  the  present  transfer  of  the  thing  for  a 
price  be  agreed  upon,  the  property  passes  from  seller  to  buyer, 
without  delivery,  by  their  mere  mutual  assent/^  The  transaction 
is  in  fact  well  described  by  the  term  'TDargain  and  sale."  The  bar- 
gain struck,  the  sale  results  by  implication  of  law. 
Distinction  between  Executed  and  Executory  Contracts  of  Sale. 

It  is  important  to  distinguish  between  executed  contracts  of  sale, 
or  actual  sales,  and  executory  contracts  of  sale,  or  agreements  to 
sell.  An  executory  contract  of  sale  is  a  contract,  pure  and  simple, 
whereas  an  executed  contract  of  sale  is  in  the  nature  of  a  convey- 
ance. "By  an  agreement  to  sell,  a  jus  in  personam  is  created;  by 
a  sale,  a  jus  in  rem  is  transferred.  If  an  agreement  to  sell  be  broken 
the  buyer  has  only  a  personal  remedy  against  the  seller.  The  goods 
are  still  the  property  of  the  seller,  and  he  can  dispose  of  them  as 
he  likes;  they  may  be  taken  on  execution  for  his  debts,  and  if  he 
becomes  bankrupt  they  pass  to  his  trustee.  ♦  ♦  «  But  if  there 
has  been  a  sale,  and  the  seller  breaks  his  engagement  to  deliver 
the  goods,  the  buyer  has  not  only  a  personal  remedy  against  him, 
but  also  the  usual  proprietary  remedies  against  the  goods  them- 
selves, such  as  the  actions  for  conversion  and  detinue.  In  most 
cases,  too,  he  can  follow  the  goods  into  the  hands  of  third  parties. 
Again,  if  there  be  an  agreement  for  sale,  and  the  goods  perish,  the 
loss  falls  on  the  seller,  while,  if  there  has  been  a  sale,  the  loss,  as  a 
rule,  falls  on  the  buyer,  though  the  goods  have  not  come  into  his 
possession."  ^^ 

Massey  v.  State,  74  Ind.  368.  Nor  does  an  instrument  giving  autliority  to  sell 
give  authority  to  exchange.  Williamson  v.  BeiTy,  8  How.  495,  544;  Edwards 
V.  Ckjttrell,  43  Iowa,  194. 

11  Post,  p.  83  et  seq. 

IS  Ghalm.  Sale,  3. 


FORMATION    OF   THE    CONTRACT.  [Ch.   1 


CAPACITY  OF  PARTIES. 

0.  Capacity  to  buy  and  sell  is  coextensive  with  capacity 
to  contract. 

EXCEPTION — Where  necessaries  are  sold  to  an  infant, 
lunatic,  or  drunken  man,  he  must  pay  a  reasonable 
price  therefor. 

The  capacity  of  persons  to  buy  and  sell  is  generally  determined 
by  their  capacity  to  contract,  upon  which  subject  the  reader  is  re- 
ferred to  works  upon  contract.  "Capacity  to  contract  must  be  dis- 
tinguished from  authority  to  contract.  Capacity  means  power  to 
bind  oneself;  authority  means  power  to  bind  another.  Capacity 
is  usually  a  question  of  law;  authority  is  usually  a  question  of  fact. 
As  regai'ds  authority  to  buy  and  sell  on  behalf  of  another,  there 
appears  to  be  nothing  peculiar  in  the  law  of  sales,  except  the  pro- 
visions of  the  factors'  acts."  ^^  On  this  subject,  therefore,  the  read- 
er is  referred  to  works  on  the  law  of  agency  and  partnership.  There 
are,  however,  certain  classes  of  persons,  in  part  incapable  of  con- 
tracting, who,  under  special  circumstances,  may  make  valid  pur- 
chases. The  persons  embraced  in  this  exception  are  infants,  luna- 
tics, and  intoxicated  persons. 

CAPACITY  OF  INFANTS. 

7.  Contracts  of  sale  and  purchase  by  an  infant  are  void- 
able, at  his  option,  either  before  or  after  he  has  attained 
his  majority.     But — 

(a)  The  contract  ceases  to  be  voidable  if  it  be  ratified 

upon  the  attainment  of  his  majority. 

(b)  The  contract  cannot  be  avoided  if  it  be   for  neces- 

saries. 

The  general  rule  of  the  common  law  is  that  an  infant' a  contract 
Is  voidable,  at  his  option,  either  before  or  after  he  has  attained  his 

18  Chalm.  Sale,  6. 


Ch.   1]  CAPACITY    OF   INFANTS.  T 

majority.^*  Thus  an  infant  may  maintain  an  action  on  the  con- 
tract against  the  seller  during  infancy.^"  He  may  buy  and  sell, 
but  either  sale  ^®  or  purchase  ^^  may  be  avoided  by  him,  and  if  he 
avoids  either  he  may  recover  back  the  consideration.^*  In  case  of 
avoidance  he  must,  however,  return  the  consideration  which  he  re- 
ceived, if  he  still  has  it;  though  if  he  has  consumed,  lost,  or  sold 
it  during  minority,  he  may  nevertheless  avoid  the  purchase  or  sale.^' 
Such  at  least  is  the  law  generally  recognized  in  America,^"  though 
in  England  his  right  to  avoid  an  executed  sale  and  recover  back 
the  price  is  denied."^ 

1*  Gibbs  V.  Merrill.  3  Taunt.  307;  Hunt  v.  Massey,  5  Barn.  &  Adol.  902  r 
Holt  V.  Clarencieux,  2  Strange,  938;  Zouch  v.  Parsons,  3  Burrows,  1794;  King 
V.  Inhabitants  of  Chillesford,  4  Barn.  &  C,  at  page  100;  Tucker  v.  Morelaud, 
10  Pet  64.  See  Pol.  Cont.  52  et  seq.  Emancipation  by  his  father  does  not  en- 
large the  infant's  liability.  Mason  v.  Wright,  13  Mete.  (Mass.)  306.  See 
Clark,  Cont.  221,  et  seq. 

IB  Warwick  v.  Bruce,  2  Maule  &  S.  205;   Holt  v.  Clarencieux,  2  Strange,  937. 

16  Shipman  v.  Horton,  17  Conn.  481;  Stafford  v.  Roof,  9  Cow.  626;  Carr  v. 
Clough,  26  N.  H.  280;    Towle  v.  Dresser,  73  Me.  252. 

17  Riley  V.  Mallory,  33  Conn.  201;  Price  v.  Furman,  27  Vt.  268;  Whitcomb 
V.  Joslyn,  51  Vt.  79;  Chandler  v.  Simmons,  97  Mass.  508;  McCarthy  v.  Hender- 
son, 138  Mass.  310;  Robinson  v.  Weeks,  56  Me.  102;  House  v.  Alexander,. 
105  Ind.  109,  4  N.  E.  891;   Lemmon  v.  Beeman,  45  Ohio  St.  505,  15  N.  E.  476v. 

18  Cases  cited  supi-a,  notes  16,  17;   Clark,  Gout.  258. 

i»  Price  V.  Furman,  27  Vt.  268;  Whitcomb  v.  Joslyn,  51  Vt.  79;  Chandler  v. 
Simmons,  97  Mass.  508;  Walsh  v.  Young,  110  Mass.  396;  Morse  v.  Ely,  154 
Mass.  458,  28  N.  E.  577;  Green  v.  Green.  69  N.  Y.  553;  Miller  v.  Smith,  26 
Minn.  248,  2  N.  W.  942;  Carpenter  v.  Carpenter,  45  Ind.  142;  Shirk  v.  Shultz, 
113  Ind.  571,  15  N.  E.  12;  Eureka  Co.  v.  Edwards,  71  Ala.  248;  Brantley  v. 
Wolf,  60  Miss.  420;    Lemmon  v.  Beeman,  45  Ohio  St.  505,  15  N.  E.  476. 

2  0  The  decisions  on  this  point,  however,  are  not  uniform.  See  Heath  y. 
Stevens,  48  N.  H.  251,  where  it  is  held  that  the  infant's  right  to  avoid  the 
contract  is  conditional  on  his  restoring  vphat  he  received  in  specie,  or,  if  not, 
on  his  accounting  for  the  value  of  it.  See,  also,  Hall  v.  Butterfield,  59  N.  H. 
354;  Bartlett  v.  Bailey,  Id.  408;  Riley  v.  Mallory,  33  Conn.  201.  But  it  is  be- 
lieved that  the  rule  stated  in  the  text  is  the  prevailing  one,  and  that  it  is  cor- 
rect on  principle.  Tyler,  Inf.  (2d  Ed.)  §  36  et  seq.;  Ewell,  Lead.  Cas.  123. 
See  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664;  Clark,  Cont.  254. 

21  "If  an  infant  pays  money  under  a  contract,  in  consideration  of  which  It  is 
wholly  or  partly  performed  by  the  other  party,  he  can  acquire  no  right  to  re- 
cover the  money  back  by  rescinding  when  he  comes  of  age."  Pol.  Cont.  60; 
Leake,  Cont.  553.  The  authorities  principally  relied  on  are  Holmes  v.  Blogg, 
8  Taunt.  508,  which  is  generally  repudiated  by  the  American  cases  above  cited. 


8  FORMATION    OF   THE    CONTRACT.  [Ch.   1 

The  power  of  an  infant  to  bind  his  father  by  his  purchases  relates 
to  his  authority  to  contract,  and  belongs  to  the  law  of  agency. 
Ratification. 

The  contract  of  an  infant  ceases  to  be  voidable  if  it  be  ratified 
by  him  after  attaining  his  majority."  By  statute  in  some  states 
the  ratification  is  required  to  be  in  writing;  ^^  but  in  most  states 
no  writing  is  necessary,  and  the  ratification  may  be  either  by  express 
language  amounting  to  a  new  promise,**  as  distinguished  from  a 
mere  acknowledgment  of  the  debt,  or  by  conduct,  as  by  using  or 
selling  the  thing  sold.'"*  Mere  silence  or  failure  to  disaflirm  does 
not  constitute  ratification.''' 
Contract  for  Necessaries. 

An  infant  may  purchase  necessaries,  and  be  held  liable  for  their 
reasonable  value. '^^     The  necessaries  of  an  infant  are  stated  in  Co. 

and  Ex  parte  Taylor,  8  De  Gex,  M.  &  G.  258.  See,  also,  Williams  v.  Pasquall, 
Peake,  Add.  Gas.  197,  per  Kenyon,  C.  J.;  Valentini  v.  Canali,  24  Q.  B.  Div.  166. 
In  Ex  parte  Taylor,  Lord  Justice  Turner  said:  "If  an  infant  buys  an  article 
wtiich  is  not  a  necessary,  he  cannot  be  compelled  to  pay  for  it;  but  if  he  does 
pay  for  it  during  his  minority  he  cannot,  on  attaining  his  majority,  recover  the 
money  back."  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664;  Moley  v.  Brine,  120 
Mass.  324;  Page  v.  Morse,  128  Mass.  99.  But  see  Dube  v.  Beaudry,  150  Mass. 
448,  23  N.  E.  222. 

22  Williams  v.  Moor,  11  Mees.  &  W.  256;  Anson,  Cent.  105;  Clark,  Cont.  258. 

23  Previous  to  the  infants'  relief  act  of  1874  (37  &  38  Vict.  c.  62),  by  which 
radical  changes  are  made  in  the  law  governing  contracts  by  infants,  a  writing 
was  required  in  England.    See  Benj.  Sales  (6th  Am.  Ed.)  §  27  et  seq. 

2*  Ford  V.  Phillips,  1  Pick.  202;  Thompson  v.  Lay,  4  Pick.  48;  Proctor  v. 
Sears,  4  Allen,  95;  Wilcox  v.  Roath,  12  Conn.  550;  Catlin  v.  Haddox,  49  Conn. 
492. 

2B  Boyden  v.  Boyden,  9  Mete.  (Mass.)  519;  Lawson  v.  Lovejoy,  8  Greenl. 
(Me.)  405;  Boody  v.  McKenuey,  23  Me.  517;  Deason  v.  Boyd,  1  Dana,  45; 
Robinson  v.  Hoskins,  14  Bush,  393;  Cheshire  v.  Barrett,  4  McCord,  241; 
Minock  V.  Shortridge,  21  Mich.  304;  Phllpot  v.  Sandwich  Manuf'g  Co.,  18 
Neb.  54,  24  N.  W.  428;  Clark,  Cont.  247. 

2  8  Smith  V.  Kelley,  13  Mete.  (Mass.)  309;  New  Hampshire  Mut.  Fire  Ins.  Co. 
T.  Noyes,  32  N.  H.  34.T;  Clark,  Cont.  251. 

2'  It  has  sometimes  been  laid  down,  in  general  terms,  that,  if  an  agreement 
be  for  the  benefit  of  the  infant,  it  is  binding.  See  Pol.  Cont.  66.  In  America 
the  exception  is  confined  to  necessaries.  But  see  Hall  v.  Butterfield,  59  N.  H. 
354;  Bartlett  v.  Bailey,  Id.  408.  See,  as  to  contracts  for  necessaries,  Clark, 
Cont.  231-239. 


Ch.    1]  CAPACITY    OF    INFANTS.  9 

Litt  172,  to  be  'Tiis  necessary  meat,  drinke,  apparel,  necessary  phys- 
icke,  and  such  other  necessaries,  and  likewise  for  his  good  teaching 
or  instruction,  whereby  he  may  profit  himself  afterwards."  But 
the  term  includes  also  articles  purchased  for  real  use,  although 
ornamental,  as  distinguished  from  such  as  are  merely  ornamental;  ^* 
and  it  has  been  said  "that  articles  of  mere  luxury  are  always  ex- 
cluded, though  articles  of  luxurious  utility  are  in  some  cases  al- 
lowed." ^^  The  word  "necessaries"  must,  therefore,  be  regarded  as 
a  relative  term,  to  be  construed  with  reference  to  the  infant's  age, 
state,   and   condition.^"     An   infant,   being   considered   in   law   as 

2  8  Peters  v.  Fleming,  6  Mees.  &  W.  42;  Ryder  v.  Wombwell,  L.  R.  3  Bxch. 
90. 

28  Chappie  V.  Cooper,  13  Mees.  &  W.  256,  per  Alderson,  B. 

8  0  Peters  v.  Fleming,  6  Mees.  &  W.  46;  Wharton  v.  Mackenzie,  5  Q.  B.  606; 
Davis  V.  Caldwell,  12  Cush.  513;  Tyler,  Inf.  (2d  Ed.)  §  69  et  seq.  An  enumera- 
tion of  the  various  things  which  have  been  decided  to  be  necessary  or  not  nec- 
essary would  be  of  comparatively  little  value,  since  the  question,  though  to  a 
great  extent  for  the  court,  is  one  of  judicial  common  sense  in  each  particular 
case.  The  subjoined  cases  are  cited  for  illustration.  The  following  articles  have 
been  held  not  to  be  necessaries:  A  silver  goblet  for  a  gift.  Ryder  v.  Wombwell, 
L.  R.  3  Exch.  90,  L.  R.  4  Exch.  32.  A  collegiate  education,  m  the  absence  of 
special  circumstances.  Middlebury  College  v.  Chandler,  16  Vt.  686.  Traveling 
expenses  for  pleasure.  McKanua  v.  Merry,  61  111.  177.  A  bicycle  used  in  going 
home  from  the  infant's  place  of  work  to  dinner.  Pyne  v.  Wood,  145  Mass.  558, 
14  N.  E.  775.  It  has  been  decided  that  the  following  things  might  be  neces- 
saries: A  livery  for  a  servant.  Hands  v.  Slaney,  8  Tei'm  R.  578.  A  regimental 
uniform  for  a  member  of  a  volunteer  corps.  Coates  v.  Wilson,  5  Esp.  152.  A 
horse,  when  required  by  the  infant's  position  or  health,  Hart  v.  Prater,  1  Jur. 
623;  but  not  generally,  Smitbpeters  v.  Griffin,  10  B.  Mon.  2.")'.);  Beeler  v.  Young, 
1  Bibb.  519;  Harrison  v.  Fane,  1  Man.  &  G.  550.  A  watch  and  jewelry,  rela- 
tively to  the  infant's  position.  Peters  v.  Fleming,  6  Mees.  «&  W.  46.  See 
Berolles  v.  Ramsay,  Holt,  N.  P.  77.  A  wedding  suit.  Sams  v.  Stockton,  14 
B.  Mon.  232.  A  lawsuit.  Thrall  v.  Wright,  38  Vt.  494.  Attorney's  fees  for 
defense  in  a  bastardy  process.  Barker  v.  Hibbard,  54  N.  H.  539;  or  in  prosecut- 
ing an  action  for  seduction,  Munson  v.  Washband,  31  Conn.  303;  or  in  defend- 
ing criminal  prosecution,  Askey  v.  Williams,  74  Tex.  294,  11  S.  W.  1101;  or  in 
litigation  relative  to  the  infant's  property,  Epperson  v.  Nugent,  57  Miss.  45 
(Phelps  V.  Worcester,  11  N.  H.  51,  contra).  It  has  been  decided  that  the  fol- 
lowing things  were  not  necessaries:  Dinners  supplied  to  an  undergraduate  at 
his  rooms,  in  the  absence  of  special  circumstances.  Brooker  v.  Scott,  11  Mees. 
&  W.  67;  Wharton  v.  INIackenzie,  5  Q.  B.  606.  Cigars  and  tobacco,  prima  facie. 
Bryant  v.  Richardson,  L.  R.  3  Exch.  93,  note  3,  14  Law  T.  (N.  S.)  24. 


10  FORMATION    OF    THE    CONTRACT.  [Ch.    1 

devoid  of  suflQeient  discretion  to  carry  on  a  trade  or  business,  is 
not  liable  for  goods  supplied  to  him  for  his  trade  or  business, 
whether  he  is  trading  alone  or  in  partnership.'*  But,  if  married, 
his  duties  as  husband  and  father  are  the  same  as  if  he  were  of  full 
age,  and  things  necessary  for  his  wife  and  children  are  deemed 
necessaries  for  himself.'^ 

It  is  obvious  that  an  article  such  as  a  diamond  or  a  race  horse 
may  be  intrinsically  incapable  of  being  a  necessary,  and  that  an- 
other article,  though  not  intrinsically  incapable  of  being  a  neces- 
sary, may  fail  of  being  such  by  reason  of  the  circumstances  of  the 
case;  for  example,  the  age  or  condition  of  the  buyer,  the  quantity 
in  which  it  is  supplied,'^  or  the  fact  that  the  wants  of  the  infant  are 
suitably  supplied  by  his  parent  or  guardian,  or  from  any  other 
source.**  The  principal  difficulty  in  respect  to  necessaries  consists 
in  determining  the  province  of  the  court  and  jury  in  ascertaining 
them.  It  is  frequently  stated  in  the  American  cases  that  the  ques- 
tion whether  articles  come  within  the  class  of  necessaries  is  for  the 

81  Why  wall  v.  Champion,  2  Strange,  1083;  Dilk  v.  Keighley,  2  Esp.  480;  Mer- 
rlam  v.  Cunningham,  11  Cush.  40;  Mason  v.  Wright.  13  Mete.  (Mass.)  306; 
Elainwater  V.  Durham,  2  Nott  &  McG.  524;  Decell  v.  Lewenthal,  57  Miss.  331. 
But  in  Mohney  v.  Evans,  51  Pa.  St.  80,  the  question  whether  farming  supplies 
were  necessaries  was  left  to  the  jury,  and,  If  he  uses  for  necessary  household 
purposes  goods  supplied  to  him  as  a  tradesman,  he  becomes  liable  on  what  is  so 
used.    Turberville  v.  Whitehouse,  1  Car.  &  P.  94. 

82  Turner  v.  Trisby,  1  Strange,  168;  Rainsford  v.  Fenwick,  Cart.  215;  Tup- 
per  V.  Cad  well,  12  Mete.  (Mass.)  559,  562;  Davis  v.  Caldwell,  12  Cush.  512; 
Cantine  v.  Phillips.  .->  Har.  (Del.)  428;   Price  v.  Sanders,  60  Ind.  311. 

83  Johnson  v.  Lines.  6  Watts  &  S.  80;   Nicholson  v.  Wilbom,  13  Ga.  467. 
34  Cook  V.  Deaton,  3  Car.  &  P.  114;  Bainbridge  v.  Pickering,  2  W.  Bl.  1.325; 

Brooker  v.  Scott,  11  Mees.  &  W.  67;  Swift  v.  Bennett,  10  Cush.  436,  437; 
Hoyt  V.  Casey,  114  Mass.  397;  Trainer  v.  Trumbull,  141  Mass.  527,  16  N. 
E.  761;  Wailing  v.  Toll,  9  Johns.  141;  Guthrie  v.  Murphy,  4  Watts,  80;  Con- 
nolly V.  Hull,  3  McCord,  6;  Kline  v.  L'Amoureux,  2  Paige,  419;  Atchison  v. 
BrufC,  50  Barb.  381;  Perrin  v.  Wilson,  10  Mo.  451;  McKanna  v.  Merry,  61 
111.  117.  If  the  infant  was  already  suflBciently  supplied,  it  is  immaterial  that 
the  seller  was  ignorant  of  the  fact.  Brayshaw  v.  Eaton,  7  Scott,  183;  Barnes 
V.  Toye,  13  Q.  B.  Div.  414;  Johnstone  v.  Marks,  19  Q.  B.  Div.  509;  Johnson 
V.  Lines,  6  Watts  &  S.  80.  But  having  an  income  out  of  which  the  infant 
might  keep  himself  supplied  is  not  equivalent  to  being  actually  supplied. 
Burghart  v.  Hall,  4  Mees.  &  W.  727;  Nicholson  v.  Wilborn,  13  Ga.  469; 
Rivers  v.  Gregg,  5  Rich.  Eq.  274. 


Ch.    1]  CAPACITY    OF   INFANTS.  '  11 

court,  and  that  the  question  whether  they  were  necessaries  in  fact 
is  for  the  jury.^"^  In  England  it  has  been  settled  that  the  question 
wliether  the  articles  were  necessaries  is  one  of  fact,  and  therefore 
for  the  jury;  but  that,  like  other  questions  of  fact,  it  should  not  be 
left  to  the  jury  unless  there  is  evidence  on  which  they  can  reasonably 
find  in  the  affirmative.^®  Practically,  there  is  little  difference  in  the 
two  rules,  for  the  cases  involving  articles  intrinsically  incapable 
of  being  necessaries  are  rare,  and  the  question  in  most  cases  de- 
pends on  the  particular  circumstances.  It  is  impossible,  therefore, 
in  most  cases,  for  the  judge  to  say  whether  articles  are  within  the 
class  of  necessaries,  without  taking  into  consideration  the  circum- 
stances of  the  case;  and  if  he  determines  that  the  articles  do  not, 
under  the  circumstances,  come  within  the  class,  he  in  effect  deter- 
mines that  there  is  not  evidence  on  which  the  jury  could  reasonably 
find  them  to  be  necessaries.  The  burden  of  proving  that  the  articles 
were  necessaries  is  on  the  plaintiff.^'' 

The  amount  for  which  the  infant  can  be  held  liable  is  not  the 
contract  price,  but  the  reasonable  value  of  the  goods.^^  Even  if 
he  gives  his  note  in  payment,  the  seller  can  recover  thereon  no 
more  than  what  the  goods  were  worth.^® 

8  8Tupper  v.  Cadwell,  12  Mete.  (Mass.)  559,  563;  Merriam  v.  Cunningham, 
11  Cush.  40,  44;  Bent  v.  Manning,  10  Vt.  225;  Stanton  v.  Willson,  3  Day,  37, 
56;  Glover  v.  Ott,  1  McCord,  572;  Beeler  v.  Young,  1  Bibb.  519;  Grace  v.  Hale, 
2  Humph.  27;  McKanna  v.  Merry,  61  111.  117. 

3  8  Ryder  V.  Womb  well,  L.  R.  3  Exch.  93,  L.  R.  4  Exch.  32.  See,  also,  Peters 
V.  Fleming,  6  Mees.  &  W.  42;  Wharton  v.  Mackenzie,  5  Q.  B.  606;  Davis  v. 
Caldwell.  12  Cush.  512,  per  Shaw,  C.  J.;  Johnson  v.  Lines,  6  Watts  &  S.  SO; 
Mohney  v.  Evans,  51  Pa.  St.  80. 

37  Thrall  v.  Wright,  38  Vt.  494;  Wood  v.  Losey.  50  Mich.  475,  15  N.  W.  557; 
Nicholson  v.  Wilborn,  13  Ga.  467,  475. 

8  8  Stone  V.  Dennison,  13  Pick.  1;  Vent  v.  Osgood,  19  Pick.  572,  575;  Locke 
V.  Smith,  41  N.  H.  346;  Beeler  v.  Young,  1  Bibb.  519;  Bouchell  v.  Clary,  3 
Brev.  194. 

«»  Earle  v.  Reed,  10  Mete.  (Mass.)  387;  Bradley  v.  Pratt,  23  Vt.  378;  Guthrie 
V.  Morris,  22  Ark.  411.  Some  cases  hold  the  note  void.  Swasey  v.  Vander- 
heyden's  Adm'r,  10  Johns.  33;  McMinn  v.  Richmonds,  6  Yerg.  9;  Ayers  v^ 
Burns,  87  Ind.  245.    See  Byles,  Bills  (7th  Am.  Ed.)  61. 


1-  FORMATION    OF   THE    CONTRACT.  [Ch.   1 


CAPACITY  OF  LUNATICS  AND  DRUNKEN  MEN. 

8.  Contracts  of  sale  and  purchase  by  a  lunatic  or  drunken 
man,  or  other  person  non  compos  mentis,  are  voidable  at 
his  option,  if  at  the  time  of  making  the  contract  he  -was 
incapable  of  understanding  its  effect. 

EXCEPTIONS— (a)  The  sale  or  purchase  is  not  void- 
able if  the  other  party  did  not  know,  or  have 
reasonable  cause  to  know,  the  condition  of  the 
lunatic  or  drunken  man,  and  if  the  contract 
has  been  so  far  executed  that  the  other  party 
cannot  be  restored  to  his  former  position, 
(b)  The  contract,  if  fair,  cannot  be  avoided  if  it  be 
for  necessaries  purchased  by  the  lunatic  or 
drunken  man. 

Ijunatics. 

The  general  rule  of  the  common  law  is  that  the  contract  of  a  luna- 
tic or  other  person  non  compos  mentis,  like  that  of  an  infant,  is  not 
void,  but  is  voidable  at  his  option,*"  Thus,  it  may  be  ratified  or 
disaffirmed  by  the  lunatic  on  recovery  of  his  sanity,*^  or  by  his 
guardian  or  other  representative,*^  but  not  by  the  other  party.*^ 

The  principal  difference  between  the  contract  of  a  lunatic  and 
that  of  an  infant  is  that  if  the  other  party  did  not  know,  or  have 
reasonable  cause  **  to  know,  of  the  lunatic's  condition  of  mind,  and 
acted  in  good  faith,  and  the  contract  has  been  so  far  executed  that 
the  parties  cannot  be  placed  in  statu  quo,  it  cannot  be  avoided. 

*o  Molton  V.  Camroux,  2  Exch.  487,  4  Exch.  17;  Matthews  v.  Baxter,  L.  R. 
8  Exch.  132;  Seaver  v.  ThelpS,  11  Pick.  304;  Carrier  v.  Sears,  4  Allen,  336; 
Chew  V.  Bank  of  Baltimore,  14  Md.  299;  lugraham  v.  Baldwin,  9  N.  Y.  45; 
Pol.  Cont.  91;   Bish.  Cont  G18;   Clark,  Cont.  263;  2  Kent,  Comm.  451. 

*i  Allis  V.  Billings,  6  Mete.  (Mass.)  415;  Arnold  v.  Richmond  Iron  Works,  1 
Gray,  434;  Gibson  v.  Sopor,  6  Gray,  279;  Turner  v.  Rusk,  53  Md.  65. 

*2  McClain  v.  Davis,  77  Ind.  419;  Ilalley  v.  Troester,  72  Mo.  78;  Moore  v. 
Hershey,  90  Pa.  St.  196;  Flint  v.  Valpey,  130  Mass,  385. 

*3  Allen  V.  Berryhill,  27  Iowa,  534. 

**  Beavan  v.  McDonnell,  lU  E.\ch.  184;  Lincoln  v.  Buckmaster,  32  Vt  652; 
Matthiessen  &  W.  R.  Co.  v.  McMahon's  Adm'r,  38  N.  J.  Law,  536,  544. 


Ch.   1]  CAPACITY    OF    LUNATICS    AND    DRUNKEN    MEN.  IS 

The  leading  case  on  this  point  is  Molton  v.  Camroux,"  the  principle 
of  which  has  generally,  though  not  universally,  been  followed  in 
this  country.*^  This  has  been  called  a  decision  of  necessity,  as  a 
contrai-y  doctrine  would  render  all  ordinary  dealings  between  man 
and  man  unsafe.*^  If,  however,  the  lunatic  restores,  or  offers  to 
restore,  the  consideration  which  he  has  received,  the  necessity 
ceases,  and  he  may  avoid  the  contract.*^  The  contractual  capacity 
of  a  lunatic  or  insane  person  under  guardianship  depends  upon  stat- 
ute, and  differs  in  different  states.*® 
Drunken  Men. 

The  rules  in  regard  to  the  contracts  of  a  man  who  is  so  intoxi- 
cated as  not  to  know  what  he  is  doing  are  the  same.^°  His  con- 
tracts are  voidable,  but  not  void,  and  hence  may  be  ratified  by  him 
when  sober.  ^^ 

*5  2  Exch.  487,  4  Exch.  17,  Ewell,  Lead.  Cas.  614.  See,  also,  Beavan  v.  Mc- 
Donnell, 9  Exch.  309,  10  Exch.  184;  Elliot  v.  Ince,  7  De  Gex,  M.  &  G.  475,  487; 
Drew  V.  Nunn,  4  Q.  B.  Div.  6G1;  Iiuperial  Loan  Co.  v.  Stone  [1892]  1  Q.  B. 
599;  Niell  v.  Morley,  9  Ves.  478,  Ewell,  Lead.  Cas.  628. 

*6  Young  V.  Stevens,  48  N.  H.  133;  Beals  v.  See,  10  Pa.  St.  56;  Lancaster 
Co.  Nat.  Bank  v.  Moore,  78  Pa.  St.  407;  Mutual  Life  Ins.  Co.  v.  Hunt,  14  Hun, 
169,  79  N.  Y.  541;  Ballard  v.  McKenna,  4  Rich.  Eq.  358;  Matthiessen  &  W.  R. 
Co.  v.  McMahon's  Adm'r,  38  N.  J.  Law,  536;  Wilder  v.  Weakley,  34  Ind.  181; 
Fay  V.  Burditt,  81  Ind.  433;  Northwestern  Mut.  Fire  Ins.  Co.  v.  Blankenship, 
94  Ind.  535;  Abbott  v.  Creal,  56  Iowa,  175,  9  N.  W.  115;  Alexander  v.  Has- 
kins,  68  Iowa,  73,  25  N.  W.  935;  Rusk  v.  Fentou,  14  Bush,  490;  Riggan  v. 
Green,  80  N.  C.  236;  Burnham  v.  Kidwell,  113  111.  425;  Gribben  v.  Maxwell, 
34  Kan.  8,  7  Pac.  584;  Leavitt  v.  FUes,  38  Kan.  26,  15  Pac.  891.  The  leading 
case  against  this  doctrine  is  Seaver  v.  Phelps,  11  Pick.  304,  Ewell,  Lead.  Cas. 
610.  See,  also,  Gibson  v.  Soper,  6  Gray,  279;  Brigham  v.  Fayerweather,  144 
Mass.  52,  10  N.  E.  735;  Hovey  v.  Hobson,  53  Me.  451;  Edwards  v.  Davenport, 
20  Fed.  756.  In  Crawford  v.  Scovell,  94  Pa.  St.  48,  Trunkey,  J.,  says:  "In 
this  country  that  rule  is  not  universally  extended  to  sales  of  personalty,  and  is 
not  applied  tu  conveyances  of  real  estate."  In  several  of  the  cases  above 
cited,  however,  it  is  applied  to  conveyances. 

*'  Elliot  V.  Ince,  7  De  Gex,  M.  &  G.  475,  per  Lord  Cranworth. 

*8  Boyer  v.  Berryman,  123  Ind.  451,  24  N.  E.  249;  Myers  v.  Knabe,  51  Kan. 
720,  33  Pac.  602;  Warfield  v.  Warfield,  76  Iowa,  633,  41  N.  W.  383;  Eaton  v. 
Eaton,  37  N.  J.  Law,  108. 

*»  Bish.  Cont.  §  977;   Clark,  Cont.  268. 

60  Pol.  Cont.  87;   Bish.  Cont.  §  979;   Clark,  Cont.  274. 

61  Matthews  v.  Baxter,  L.  R.  8  Exch.  132.  Pointing  out  that  "void,"  as  used 
In  Gore  v.  Gibson,  13  Mees.  &  W.  623,  Ewell,  Lead.  Cas.  734,  must  be  taken  to 


14  FORMATION   OF   THE    CONTRACT.  [Ch.   1 

Neceasarie*. 

So  far  as  relates  to  the  contracts  of  a  lunatic  for  necessaries, 
where  no  advantage  is  taken  of  his  condition  by  the  seller,  the  pur- 
chases will  be  held  vaJid."  As  in  the  case  of  an  infant,  "neces- 
saries'' embrace  ai'ticles  suitable  to  his  condition  and  degree,"^'  but 
in  the  case  of  a  lunatic  the  term  would  probably  be  more  liberally 
construed.'*  It  seems  that  a  drunken  man  also  is  liable  for  neces- 
saries." 

CAPACITY  OF  MARRIED  WOMEN. 

9.  At  common  la^w  contracts  of  sale  and  purchase  by 
married  -women  are  in  general  void;  but  the  capacity  of 
married  -women  to  contract  has  generally  been  extended 
by  statute. 

Although  the  common-law  capacity,  or  rather  incapacity,  of  a 
married  woman  to  buy  and  sell  is  coextensive  with  her  general  ca- 
pacity or  incapacity  to  contract,  and  the  subject  therefore  falls 
rather  within  the  law  of  contract  and  of  married  women  than  of 
sale,  a  few  words  on  the  subject  may  not  be  out  of  place.  At  com- 
mon law  a  married  woman  is  incompetent  to  contract.**'  A  con- 
tract with  her  is  not,  as  in  the  case  of  an  infant  or  lunatic,  merely 

mean  "voidable."  Molton  v.  Camroux,  4  Exeh.  17;  Carpenter  v.  Rodgers,  61 
Mich.  3S4,  28  N.  W.  150;  Broadwater  v.  Dame,  10  Mo.  277;  Bish.  Cont.  §  985; 
Clark,  Cont.  274. 

s:  Baxter  V.  Earl  of  Portsmouth.  5  Barn.  &.  C  170;  Bagster  v.  Same.  7  Dow. 
&  R.  614;  Manby  v.  Scott,  1  Sid.  112;  Dane  v.  Kirkwall.  8  Car.  &  P.  679; 
Wentworh  v.  Tnbb.  1  Younge  &  C.  Ch.  171;  Williams  v.  Wentworth,  5  Beav. 
325;  Nelson  v.  Duncombe,  9  Beav.  211;  Richardson  v.  Strong,  13  Ired.  106;  La 
Rue  V.  Gilkyson,  4  Pa.  St.  375;  Sawyer  v.  Lufkin.  56  Me.  SOS;  Hallett  v.  Cakes. 
1  Cnsh.  290;  Kendall  v.  May,  10  Allen.  59;  Skidmore  v.  Romaine,  2  Bradf. 
(Sur.)  122;  Barnes  v.  Hathaway,  66  Barb.  453;  Blaisdell  v.  Holmes,  48  Vt. 
492;  McCormick  v.  Littler,  85  111.  62. 

53  Baxter  v.  Earl  of  Portsmouth,  5  Barn.  &  C.  170;  Bagster  v.  Same,  7  Dow. 
&  R.  014;  La  Rue  v.  Gilkyson,  4  Pa.  St.  375;  Richardson  v.  Strong,  13  Ired. 
106. 

»*  Kendall  v.  May,  10  Allen.  59.    See  In  re  Persse,  3  Malloy,  94. 

B6  Gore  V.  Gibson,  13  Mees.  &  W.  023,  per  Pollock,  C.  B.,  and  AldiJisoD,  B. 

8  8  Co.  Litt.  Ii2d. 


Ch.   1]  CAPACITY    OF   MARRIED   WOMKN.  15 

voidable,  but  is  void,"  and  hence  is  incapable  of  ratification  upon 
termination  of  coverture."  She  cannot,  even  while  living  apart 
from  her  husband  and  enjoying  a  separate  maintenance  secured  by 
deed,  make  a  valid  purchase,  on  her  own  account,  even  of  neces- 
saries/' To  the  general  rule  of  her  incapacity  to  contract,  how- 
ever, there  are  several  exceptions:  (1)  T\Tien  the  husband  is  civil- 
iter  mortuus  (that  is,  dead  in  law,  as  when  he  is  under  sentence  of 
penal  servitude,  transportation,  or  banishment),  her  disability  is  sus- 
pended,®*' and,  according  to  some  authorities,  it  is  suspended  when 
he  is  an  alien  and  resident  abroad.®^  (2)  By  the  custom  of  the  city 
of  London,  a  married  woman  might  trade,  and  for  that  purpose 
might  make  valid  contracts.®^  (3)  In  equity,  when  a  married  wo- 
man has  separate  property,  she  may,  under  certain  circumstances, 
contract  so  as  to  render  it  liable.®^  It  is  to  be  noticed  that  the  ex- 
ceptions to  the  incapacity  of  married  women  to  contract  are  not 
confined,  as  is  the  exception  in  the  case  of  infants  and  lunatics,  sim- 
ply to  purchases  of  necessaries,  but  that  it  extends  to  their  general 
contractual  capacity. 

The  power  of  a  married  woman,  when  living  with  her  husband, 
to  bind  him  by  contract  for  necessaries  for  herself  and  her  house- 
hold, relates  rather  to  her  implied  authority  than  to  her  capacity 
to  contract.'* 

The  common  law  in  regard  to  the  contractual  capacity  of  married 
women  has  been  radically  changed  by  legislation  in  England  '^  and 

8T  Anson,  Cont.  (4th  E(L)  117;  Bish.  Cont.  §  949;  Clark,  Cont.  27G;  Schouler, 
Husb.  &  Wife,  §§  97,  98. 

6  8  Zouch  V.  Parsons,  3  Burrows,  1794;  Schouler,  Husb.  &  Wife,  §  99.  There 
are,  however,  some  authorities  which  hold  that  the  moral  consideration  is 
sufficient  to  support  a  promise  after  termination  of  coverture.  Lee  v.  Mug- 
geridge,  5  Taunt.  36.    Ewell,  Lead.  Cas.  .322,  331;    Stew.  Husb.  &  Wife,  §  366. 

o»  Marshall  v.  Button,  8  Term  B.  545. 

80  Benj.  Sales,  §  32;    Stew.  Husb.  &  Wife,  §  358. 

«i  Benj.  Sales,  §§  33,  34;  Stew.  Husb.  &  Wife,  §  358;  Gregory  v.  Paul,  15 
Mass.  31;  McArthur  v.  Bloom,  2  Duer,  151.  So  where  the  husband  was  a  citi- 
zen and  resident  in  another  state.    Abbot  v.  Bayley,  6  Pick.  89. 

«2  Beard  v.  Webb,  2  Bos.  &  P.  93. 

«s  Anson,  Cont.  (4th  Ed.)  118;  Clark,  Cont.  279;  Schouler,  Husb.  &  Wife, 
§  189  et  seq. 

«*  Schouler,  Husb.  &  Wife,  §  100  et  seq. 

6  5  Benj.   Sales,  §  37  et  seq. 


16  FORMATION    OF    TIIK    CONTRACT.  [Ch.    1 

in  most  of  the  states  of  this  country,"  and  in  many  states  her 
disability  to  contract  has  been  wholly  removed.  These  statutory 
provisions  differ  greatly  among  themselves,  and  a  consideration  of 
the  statutory  capacity  of  married  women  to  buy  and  sell  cannot 
be  here  attempted. 

WHO  MAY  SELL. 

10.  As  a  rule,  no  person  can  sell  personal  property  unless 
he  be  the  ow^ner. 

EXCEPTIONS— (a)  In  England,  but  not  in  the  TJnitea 
States,  "where  goods  are  sold  in  market  overt, 
according  to  the  usage  of  the  market,  the  buyer 
acquires  a  good  title  to  the  goods,  provided  he 
buys  them  in  good  faith,  and  "writhout  notice 
of  defect  of  title.^ 

(b)  Where   promissory  notes,  bills  of  exchange,  or 

other  negotiable  securities  are  transferred  by 
the  holder  before  maturity  to  a  bona  fide  pur- 
chaser, for  value,  the  purchaser  may  acquire  a 
good  title. 

(c)  A  person,  not  being  the  owner  of  goods,  may  sell 

them,  so  as  to  pass  a  good  title  thereto,  if  he 
acts  under  authority  or  power  given  by  the 
owner,  or  conferred  by  law,  and  duly  exercises 
such  authority  or  power. 

(d)  By  statute  in  England  and  in  many  states,  pur- 

chasers from  factors  and  other  persons  in- 
trusted w^ith  and  in  the  possession  of  goods  or 
the  documents  of  title  may,  under  certain  cir- 
cumstances, acquire  good  title,  though  the  factor 
or  other  person  w^as  not  authorized  to  sell. 

•«  Stim.  Am.  St.  Law,  §  6482. 

«7  The  Case  of  Market-Overt.  5  Coke.  S3b;  Tud.  Merc.  Cas.  (3d  Ed.)  p.  274; 
Crane  v.  London  Dock  Co.,  5  Best  &  S.  313,  33  Law  J.  Q.  B.  224,  229;  Benj. 
Sales.  §  8  et  seq. 


Ch.  1]  WHO    MAY    SELL.  17 

(e)  When  the   seller   of  goods   has  a  voidable  title, 

but  his  title  has  not  been  avoided  at  the  time 
of  sale,  the  buyer,  in  general,  acquires  a  good 
title,  provided  he  buys  them  in  good  faith  and 
"without  notice  of  the  seller's  defect  of  title. 

(f )  A  sale  made  by  a  person  not  thereto  authorized, 

may  be  good,  as  against  the  ov^ner,  by  "way  of 
estoppel. 

Not  only  must  the  parties  to  a  sale  be  capable  of  contracting, 
but  one  of  them,  the  seller,  must  (subject  to  the  exceptions  men- 
tioned) be  the  owner  of  the  thing  sold,  for,  as  a  rule,  no  one  can 
pass  to  the  buyer  a  better  title  than  he  himself  possesses.  "Nemo 
dat  quod  non  habet."  ®*  A  person,  therefore,  however  innocent, 
who  buys  goods  from  one  not  the  owner,  obtains,  in  general,  no 
property  in  them  whatever;  and  even  if,  in  ignorance  that  the 
goods  were  lost  or  stolen,  he  resells  them  in  good  faith  to  a  third 
person,  he  remains  liable  in  trover  to  the  original  owner.^®  It  is  to 
be  observed  that,  in  the  cases  covered  by  the  first  and  second  ex- 
ceptions, the  buyer,  like  one  who  in  good  faith  receives  money  in 
payment,'''*  obtains  a  good  title  as  against  all  the  world, — that  is, 
even  against  one  who  has  lost  the  thing  sold,  or  from  whom  it  has 
been  stolen, — while  in  the  cases  covered  by  the  other  exceptions  the 
buyer  simply  obtains  the  title  (if  any)  of  a  particular  person,  who 

68  Pee?  V.  Humphrey,  2  Adol.  &  E.  495;  Whistler  v.  Forster,  32  Law  J.  C. 
.P.  161;  Cooper  v.  Willomatt,  1  C.  B.  672,  14  Law  J.  C.  P.  219;-Cuudy  v.  Liud- 

say,  3  App.  Cas.  459;  Stanley  v.  Gay  lord,  1  Gush.  536;  Chapman  v.  Cole,  12 
Gray,  141;  Parsons  v.  Webb,  8  Greenl.  (Me.)  38;  Galvin  v.  Bacon,  11  Me.  28; 
Prime  v.  Cobb,  63  Me.  200;  Kiford  v.  Montgomery,  7  Vt.  418;  BiTant  v. 
Whitcher,  52  N.  H.  158;  Barrett  v.  Warren,  3  Hill,  348;  Williams  v.  Merle,  11 
Wend.  SO;  Saltus  v.  Everett,  20  Wend.  267.  The  cases  cited  under  the  ex- 
ceptions may  also  generally  be  cited  under  the  rule.  Benj.  Sales,  §  6;  Chalm. 
Bale,  §  24. 

69  Stone  V.  Marsh,  6  Bam.  &  C.  551;  Marsh  v.  Keating,  1  Bing.  N.  C.  198, 
2  Clark  &  F.  250;  White  v.  Spettigue,  13  Mees.  &  W.  603;  Lee  v.  Bayes,  18  C. 
B.  599;  Hoffman  v.  Carow,  20  Wend.  21;  Courtis  v.  Cane,  32  Vt  232;  Gilmore 
V.  Newton,  9  Allen,  171;  Riley  v.  Boston  Water- Power  Co.,  11  Gush.  11. 

TO  Miller  v.  Race,  1  Burrows,  452;  Saltus  T.  Everett,  20  Wend.  267;  Cha^ 
man  v.  Cole,  12  Gray,  141. 

SALES— 3 


18  FOKMATION    OF   THE    CONTRACT.  [Ch.    1 

may  or  mav  not  be  the  true  owner,  without  prejudice  to  the  rights 
of  any  person  who  may  in  fact  have  a  superior  title. 
Market  Overt. 

The  rules  of  market  overt  apply  only  to  a  limited  class  of  retail 
transatdons.'^  All  shops  in  the  city  of  London  are  market  overt, 
for  the  purpose  of  their  own  trade;  ^*  but  a  sale  by  sample  is  not 
within  the  custom,  because  the  whole  transaction,  and  not  merely 
the  formation  of  the  contract,  must  take  place  within  the  open  mar- 
ket.^ ^  Outside  the  city  of  London,  markets  overt  may  exist  by 
grant  or  prescription.'*  The  exception  in  favor  of  sales  in  market 
overt  has  never  existed  in  the  United  States.^* 
Negotiable  Instilments. 

For  the  rules  relating  to  the  transfer  of  negotiable  securities,  the 
reader  is  referred  to  the  works  upon  bills  and  notes. 
Sale  under  Power. 

The  owner  may,  of  course,  make  a  sale  by  an  agent  thereto  au- 
thorized; and  he  may,  as  in  the  case  of  a  mortgage,  expressly  con- 
fer on  another  the  power  of  making  a  sale  upon  a  certain  contin- 
gency. But,  besides  these  cases  of  express  authorization,  there 
are  many  cases  where  the  authority  is  implied  by  law  from  the  rela- 
tion of  the  parties.  Thns  a  pawnee  of  goods  has  authority,  implied 
by  law,  in  case  of  default,  to  sell  the  goods  pledged;  ^'  and  the 
master  of  a  ship  has  implied  authority,  in  case  of  necessity,  to  sell 
the  goods  of  the  shippers  of  the  cargo.'' ^  So  a  landlord  distraining 
for  rent  may  sell  the  goods  of  his  tenant®  And  a  sheriff,  as  an 
oflScer  on  whom  the  law  confers  a  power,  may  sell  the  goods  of  the 

■Ti  Benj.  Sales,  §  8;   Chalm.  Sale,  §  25. 

72  See  Wilkinson  v.  Rex,  2  Camp.  333. 

7  3  Crane  v.  London  Dock  Co.,  5  Best  &  S.  313,  33  Law   J.  Q.  B.  224. 
-I*  Chalm.  Sale,  40. 

75  Dame  v.  Baldwin,  8  Mass.  518;  Towne  v.  Collins,  14  Mass.  500;  Wheel- 
wright V.  Depeyster,  1  Johns.  471;  Hoffman  v.  Carow,  22  Wend.  285;  Hosack 
V.  Weaver,  1  Yeates,  478;  Easton  v.  Worthington,  5  Serg.  &  R.  130;  Browning 
V.  Magill,  2  Har.  &  J.  308;  Rolan  v.  Gundy,  5  Ohio,  202;  Ventress  v.  Smith, 
10  Pet.  161,  2  Kent,  Comm.  324. 

76  2  Kent,  Comm.  582;    Schouler,  Bailm.  §  227  et  seq. 
T7  3  Kent,  Comm.  173. 

7  8  Woodf.  LandL  &  Ten.  (13th  Ed.)  479-481;  TayL  LandL  &  Ten.  (8th  Ed.) 
I  57  et  seq. 


Ch.   1]  WHO    MAY    SELL.  19 

defendant  in  execution;  nor  will  the  title  to  them  be  affected  if  the 
execution  was  voidable/'  though,  if  the  defendant  had  no  title,  the 
sheriff  can,  of  course,  give  none.***  It  would  be  useless  to  multiply 
illustrations  of  the  cases  in  which  property  may  be  sold,  without 
the  consent  of  the  owner,  under  process  of  law. 

Factors^  Acta. 

As  the  earlier  English  factors'  acts  have  been,  to  a  great  extent, 
the  models  of  the  various  enactments  on  the  same  subject  in  the 
United  States,  it  will  be  sufScient  for  the  present  purpose  to  refer 
briefly  to  the  history  and  effect  of  the  English  acts. 

The  factors'  act  (6  Geo.  IV.  c.  94,  §  2)  enacted  that  "persons  in- 
trusted with  and  in  the  possession  of  any  bill  of  lading,  Indian 
warrant,  dock  warrant,  warehouse-keeper's  certificate,  warrant,  or 
order  for  the  delivery  of  goods,  shall  be  deemed  and  taken  to  be  the 
true  owner  of  the  goods  so  far  as  to  give  validity  to  sales"  by  them 
to  buyers  without  notice  that  such  vendors  were  not  owners;  and 
by  5  «&  6  Vict.  c.  39,  this  section  was  amended  so  as  to  give  the  same 
effect  to  the  possession  of  the  goods  themselves  as  to  the  bill  of 
lading,  "or  other  documents  of  title."  The  fourth  section  of  the 
earlier  act  provided  that  purchasers  from  "any  agent  or  agents  in- 
trusted with  any  goods,  wares,  or  merchandise,"  or  to  whom  the 
same  might  be  consigned,  should  be  protected  in  their  purchases 
notw  ithstanding  notice  that  the  vendors  were  agents,  provided  that 
the  purchase  and  payment  were  made  in  the  usual  course  of  busi- 
ness and  the  buyer  had  not  notice  of  the  absence  of  authority  of 
the  agent.  These  acts  applied  solely  to  persons  intrusted  as  factors 
or  commission  merchants,  and  not  to  persons  to  whose  employment 
a  power  of  sale  is  not  ordinarily  incident;  for  example,  a  wharfin- 

7  8  Turner  v.  Felgate,  1  Lev.  95;  Manning's  Case,  8  Coke,  94b;  Emmett  v. 
Thorn,  1  Maule  &  S.  425;  Bank  of  U.  S.  v.  Bank  of  Washington,  6  Pet.  9;  Park 
v.  Darling,  4  Cush.  197;  Jackson  v.  Cadwell,  1  Cow.  623;  Woodcock  v.  Bennet, 
Id.  711;  Stinson  v.  Ross,  51  Me.  556.  Otherwise  where  the  judgment  or  ex- 
ecution is  void.  Lock  v.  Sellwood,  1  Q.  B.  736;  Camp  v.  Wood,  10  Watts,  118; 
Caldwell  v.  Walters,  18  Pa.  St.  79;   Kennedy  v.  Duncklee,  1  Gray.  65. 

80  Farrant  v.  Thompson,  5  Barn.  &  Aid.  826;  Shearick  v.  Huber,  6  Bin.  2; 
Griffith  V.  Fowler,  18  Vt.  390;  Buffum  v.  Deane,  8  Cush.  41;  Champney  v. 
Smith,  15  Gray,  512;  Williams  v.  Miller,  16  Conn.  146;  Symonds  v.  Hall,  37  Me. 
354;  Coombs  v.  Gorden,  59  Me.  Ill;  Bryant  v.  Whitcher,  52  N.  H.  158. 


20  FORMATION    OF   THE   CONTRACT.  [Ch.   1 

ger."*  They  were  limited  in  their  scope  to  mercantile  transactions, 
and  did  not  embrace  sales  of  furniture  or  goods  in  possession  of  a 
tenant  or  bailee  for  hire.*' 

It  might  be  supposed  that  the  effect  of  these  enactments  was  that 
if  the  owner  of  goods  intrusted  their  possession  or  their  indicia  of 
title  to  a  person  who,  from  the  nature  of  his  employment,  might  be 
taken  prima  facie  to  have  the  right  to  sell,  a  sale  by  such  person 
to  a  purchaser  without  notice  would  bind  the  true  owner. "^  But 
in  Fuentes  v.  Montis,**  where  the  plaintiff  consigned  wine  for  sale 
to  a  factor,  who,  after  revocation  of  his  authority,  pledged  it  as  se- 
curity for  advances  made  by  defendant,  it  was  held  that  though  the 
revocation  was  unknown  to  the  defendant,  and  the  wine  was  still 
in  the  factor's  possession,  the  latter  was  no  longer  "intrusted  with 
and  in  possession"  of  the  goods,  the  courts  also  held  that,  to  consti- 
tute a  person  "an  agent  intrusted  with  the  possession  of  goods," 
he  must  have  been  intrusted  in  the  character  of  such  agent;  that  is, 
for  the  purpose  of  sale.*"*  They  also  held  that  the  acts  did  not 
cover  the  case  of  a  seller  left  in  possession  of  the  goods  or  docu- 
ments of  title,*®  or  of  a  buyer  thus  left  in  possession  so  as  to  defeat 
the  rights  of  an  unpaid  seller.**^  The  effect  of  the  decisions  was 
partly  annulled  by  40  &  41  Vict.  c.  39,  which  provided  that  a  secret 
revocation  of  agency  should  not  be  operative,  and  which  extended 
the  scope  of  the  acts  to  buyers  and  sellers  left  in  possession  of  the 
documents  of  title.  Finally,  the  recent  factors'  act  (1889)  still 
further  extends  the  effect  of  the  former  acts. 

It  would  be  beyond  the  scope  of  an  elementary  book  upon  sales 

81  Monk  V.  Whlttenbury,  2  Barn.  &  AdoL  484;  Wood  v.  RowcliCfe,  6  Hare, 
183;  Lamb  v.  Attenborough,  1  Best  &  S.  831;  Jaulerry  v.  Britten,  5  Scott,  655, 
4  Bing.  N.  C.  242;   Hellings  v.  Russell,  33  Law  T.  (N.  S.)  380. 

82  Loeschman  v.  Machiu,  2  Starkie,  311;  Cooper  v.  Willomatt,  1  C.  B.  672. 
88  Beuj.  Sales,  §§  19,  20. 

8*  L.  R.  3  C.  P.  268,  37  Law  J.  C.  P.  137,  L.  R.  4  C.  P.  93.  See,  also,  Shep- 
pard  V.  Union  Bank  of  London,  7  Hurl.  &  N.  661,  31  Law  J.  Exch.  154. 

8  5  Cole  V.  North  Western  Bank,  L.  R.  9  C.  P.  470,  affirmed  L.  R.  10  C.  P.  354; 
Johnson  v.  Credit  Lyonnais  Co.,  2  C.  P.  Div.  224,  affirmed  3  C.  P.  Dlv.  32;  Hel- 
lings V.  RusseU,  33  Law  T.  (N.  S.)  380. 

88  Johnson  v.  Credit  Lyonnais  Co.,  3  C.  P.  Div.  32. 

8T  Jenkyns  v.  Usborne,  7  Man.  &  G.  678,  8  Scott,  N.  R.  505;  McEwan  v. 
Smith,  2  H.  L.  Cas.  309. 


Ch.   1]  WHO    MAY   SELL.  21 

to  consider  the  varying  provisions  of  the  different  factors'  acts 
passed  in  the  United  States."  Enough  has  been  said,  however,  to 
Illustrate  the  struggle  which  has  existed  between  the  common  law 
rule,  "nemo  dat  quod  non  habet,"  and  the  contention  of  the  mer- 
cantile community,  now  partially  embodied  in  legislation,  that,  if  a 
person  is  put  in  possession  of  goods  or  documents  of  title,  he  ought, 
as  regards  innocent  third  persons,  to  be  regarded  as  the  owner  of 
the  goods.  ®^ 
SaU  under  Voidable  Title. 

*^Where  goods  have  been  obtained  by  means  amounting  to  larceny, 
the  thief  has,  of  course,  no  title;  but  where  goods  have  been  ob- 
tained by  fraud  the  person  who  so  obtains  them  may  have  no  title 

»8  Factors'  acts  have  been  passed  in  the  following  states:  Kentucky,  Laws 
1880.  May  5;  Maine,  Rev.  St.  c.  31;  Maryland,  Rev.  Code,  art.  34;  Massa- 
chusetts, Pub.  St.  c.  71;  Missouri,  Rev.  St.  §  6281;  New  York,  Acts  1830,  c.  179; 
Ohio,  Rev.  St.  §§  3215-3219;  Pennsylvania,  Brightly,  Purd.  Dig.  p.  773;  Rhode 
Island,  Pub.  St.  c.  136;  Wisconsin,  Rev.  St.  §§  3345,  3346.  A  warehouseman, 
who  la  also  a  broker,  with  authority  only  to  receive  offers  for  merchandise 
stored  with  him  as  warehouseman,  and  report  them  to  his  principal,  is  not  a 
"factor  or  other  agent  intrusted  with  the  possession  of  merchandise  for  the 
purpose  of  sale,"  or  "a  person  intrusted  with  merchandise,  and  having  author- 
ity to  sell  or  consign  the  same,"  or  a  "consignee  or  factor  having  possession  of 
merchandise  with  authority  to  sell  the  same,"  within  the  provisions  of  the 
Massachusetts  factors'  act.  Thacher  v.  Moors,  134  INIass.  156.  See,  also,  Nick- 
erson  v.  Darrow,  5  Allen,  419;  Stolleuwerck  v.  Thacher,  115  Mass.  224;  Good- 
win V.  Massachusetts  Loan  &  Ti-ust  Co.,  152  Mass.  189,  25  N.  E.  100.  The 
New  York  factors'  act,  which  declares  that  one  intrusted  with  the  possession 
of  the  goods  of  another,  for  the  purpose  of  sale,  shall  be  deemed  the  true  owner, 
so  far  as  to  give  validity  to  a  disposition  thereof  for  money  advanced,  does  not 
protect  a  party  who  has  made  advances  on  goods  to  a  factor,  with  kuot\ledge 
that  he  was  not  the  true  owner.  Stevens  v.  Wilson,  3  Denio,  472.  As  to  what 
amounts  to  "Intrusting":  Collins  v.  Ralli,  20  Hun,  246,  85  N.  Y.  637;  Soltau 
V.  Gerdau,  119  N.  Y.  380,  23  N.  E.  864;  Kinsey  v.  Leggett,  71  N.  Y.  387,  395; 
Mechanics'  &  Traders'  Bank  v.  Farmers'  &  Mechanics'  Nat  Bank,  60  N.  Y. 
40.  A  factor  has  no  power  to  pledge,  unless  the  power  is  conferred  by  stat- 
ute. Cole  V.  North  Western  Bank,  L.  R.  10  C.  P.  354;  Johnson  v.  Credit  Lyon- 
nais  Co.,  3  C.  P.  Div.'  32;  Warner  v.  Martin,  11  How.  209;  Allen  v.  St.  Louis 
Bank,  120  U.  S.  20,  7  Sup.  Ct.  460;  Commercial  Bank  v.  Hurt,  99  Ala.  130,  12 
South.  568,  572;  Michigan  State  Bank  v.  Gardner,  15  Gray,  362;  Gray  v.  Agnew, 
D5  111.  315;  Wright  v.  Solomon,  19  Cal.  64.  See  Wllliston,  Cas.  Sales,  p.  603, 
note 

•»  See  Chalm.  Sale,  97  et  seq. 


22  FORMATION    OF    THE    CONTRACT.  [Ch.    1 

at  all,  or  may  have  a  voidable  title,  according  to  the  nature  of  the 
transaction.  If  the  nature  of  the  fraud  be  such  that  there  was 
never  a  contract  between  the  parties,  as  if  A.  obtains  goods  from 
B.  by  falsely  pretending  to  be  C,  then  A.  has  no  title  at  all,  and 
can  give  none.^"  Hut  if  the  person  defrauded  really  intended  to 
part  with  the  property  in,  and  possession  of,  the  goods,  though  in- 
duced to  do  so  by  fraud,  there  is  a  contract  which  he  may  affirm  or 
disaffirm  at  his  election."  *^  Hence  the  person  who  obtains  the  goods 
has  a  voidable  title,  and  can  give  a  good  title  to  an  innocent  pur- 
chaser before  the  other  party  has  disaffirmed."  And  the  same  rule 
prevails  where  the  sale  is  voidable  in  favor  of  creditors." 
.^Estoppel. 

"VMiere  the  owner  of  goods,  by  his  words  or  conduct,  willfullj' 
causes  another  to  believe  that  the  goods  belong  to  a  third  person, 
and  to  buy  them  from  such  person  in  that  belief,  he  is  estopped  to 
assert  his  title  against  such  buyer.** 

THE  THING  SOLD. 

11.  The  thing  -which  forms  the  subject-matter  of  a  sale 
m^ust  be  in  existence  and  o-v^ned  by  the  seller. 

12.  A  contract  to  sell  goods  not  yet  in  existence  or  ac- 
quired by  the  seller  can  only  operate  as  an  agreement  to 
seU. 

EXCEPTIONS— (a)  A    contract    to    sell    goods    which 
have   a   "potential  existence" — that  is,  -which 

«o  Higgons  V.  Burton,  26  Law  J.  Exch.  342;  Hardman  v.  Booth,  32  Law  J. 
Exch.  105;  Cundy  v.  Lindsay,  3  App.  Cas.  459. 

•  1  CLalm.  Sale,  41;    Clough  v.  London  &  N.  W.  Ry.  Co.,  L.  R.  7  Exch.  26. 

8  2  White  V.  Garden,  10  C.  B.  919,  20  Law  J.  C.  P.  166;  Kingsford  v.  Merry, 
25  Law  J.  Exch.  166;  Pease  v.  Gloahec,  L.  R.  1  P.  C.  219,  229;  Hoffman  v. 
Noble,  6  Mete.  (Mass.)  68;  Zoeller  v.  Riley,  100  N.  Y.  102,  2  N.  E.  388;  Chalm. 
Sale,  §  26;  post,  p.  122. 

•8  Green  v.  Tanner,  8  Mete.  (Mass.)  411;  Sleeper  v.  Chapman,  121  Mass.  404; 
Neal  v.  Williams,  18  Me.  391;  Comey  v.  Pickering,  63  N.  H.  126;  Gordon  v. 
Ritcnour,  87  Mo.  54;  post,  p.  128. 

»■*  Pickard  v.  Sears,  6  Adol.  &  E.  469;  Gregg  v.  Wells,  10  Adol.  &  E.  90; 
Waller  v.  Drakeford,  22  Law  J.  Q.  B.  274;  Freeman  v.  Cooke,  2  Exch.  654; 
Knights  V.  WifEen,  L.  R.  5  Q.  B.  660;  post,  p.  212. 


Ch.   IJ  THE    THING   SOLD.  25 

are  the  expected  product  or  increase  of  souie- 
thing   owned  by  the  seller  —  may  operate   to 
pass  the  property  in  the  goods  upon  their  com- 
ing into  existence. 
(b)  A  contract  to  sell  goods  not  yet  acquired  by  the 
seller  may  operate  to  pass  the  equitable  inter- 
est of  the  seller  in  the  goods  upon  their  ac- 
quisition by  him. 
13.  Goods  not  yet  in  existence  or  acquired  by  the  seller^ 
or  the  acquisition  of  which  by  him  is  dependent  on  a  con- 
tingency which  may  or  may  not  happen,  may  be  the  sub- 
ject of  an  agreement  to  sell. 

Sale  of  Thing  Which  has  Ceased  to  Exist. 

From  the  very  definition  of  a  sale,  it  follows  that  there  can  be 
no  sale  without  the  existence  of  the  thing  sold.®"^  Accordingly,  if 
there  is  a  contract  for  the  present  sale  of  specific  goods,  and  the 
goods,  unknown  to  the  parties,  have  ceased  to  exist  at  the  time  of 
the  contract,  the  contract  is  void.  Thus  in  the  leading  case  of 
Hastie  v.  Couturier,^^  where  a  bought  note  had  been  signed  for 
a  cargo  of  corn  on  a  vessel  not  yet  arrived,  but  before  the  sale,  and 
unknown  to  the  parties,  the  cargo  had  been  discharged  and  sold  at 
an  intermediate  port,  it  was  held  in  the  house  of  lords  that  what 
the  parties  contemplated  was  that  there  was  an  existing  something 
to  be  sold  and  bought,  and  that,  no  such  thing  existing,  there  was 
no  contract  which  could  be  enforced.  The  rule  may  be  based  both 
on  the  ground  of  mutual  mistake  and  on  the  ground  of  impossibility 
of  performance.*^  And  upon  the  latter  ground,  when  the  contract 
is  for  the  future  sale  of  specific  goods,  and,  without  the  fault  of 

«B  Hastie  v.  Couturier,  9  Exch.  102,  5  H.  L.  Cas.  673,  reversing  S  Exch.  40; 
Stricliland  v.  Turner,  7  Excli.  208;  Allen  v.  Hammond,  11  Pet.  63;  Tlaompson 
V.  Gould,  20  Pick.  134;  per  WUde,  J.,  139;  Rice  v.  D wight  Manuf'g  Co.,  2  Cusb. 
80,  86;  Fraaklin  v.  Long,  7  Gill  &  J.  407;  Gibson  v.  Pelkie,  37  Mich.  380. 
Partial  loss  does  not  avoid  the  conti"act.  The  question  Is  whether  the  article 
has  been  so  far  destroyed  as  no  longer  to  answer  the  description.  Barr  v. 
Gibson,  8  Mees.  &  W.  390. 

86  9  Exch.  102,  5  H.  L.  Cas.  673. 

•7  Pol.  Cent  (4th  Ed.)  370.    Cf.  Farrer  v.  Nightingal,  2  Esp.  639. 


24  FORMATION    OF   THE   CONTRACT.  [Ch.   1 

buyer  or  seller,  the  goods  perish  before  the  property  has  passed,  the 
contract  is  avoided."' 

The  necessity  of  ownership  by  the  seller  of  the  thing  sold  has  al- 
ready been  considered." 
Sali  of  Thing  not  yet  in  Existence  or  Acquired. 

A  contract  for  the  sale  of  goods  not  yet  in  existence  or  acquired 
by  the  seller  can  obviously  have  no  greater  effect,  as  a  present  sale, 
than  a  contract  for  the  sale  of  goods  that  have  ceased  to  exist.  Nor 
can  a  contract  purporting  to  effect  a  present  sale  of  goods  to  be  ac- 
quired operate  so  as  to  pass  the  property  in  the  goods  upon  their 
acquisition  by  the  seller,  or  have  any  greater  force  than  an  agree- 
ment to  sell.^°°  In  such  case,  therefore,  though  the  contract  be 
in  the  form  of  a  present  sale,  the  legal  property  in  the  goods  does 
not  pass  to  the  buyer  unless  the  seller,  after  his  acquisition  of  the 
goods,  and  before  the  rights  of  third  persons,  such  as  bona  fide  pur- 
chasers or  attaching  creditors,  have  intervened,  does  some  act 
clearly  showing  his  intention  of  giving  effect  to  the  original  agree- 
ment,^"^ or  the  buyer  takes  possession  of  them  under  authority  to 
seize,  which  is  equivalent  to  a  delivery.^"* 

«8  Post,  p.  160. 

09  Aute,  p.  10. 

xoo  Lunn  v.  Thornton,  1  C.  B.  379,  14  Law  J.  C.  P.  161;  Gale  v.  Bumell,  7 
Q.  B.  850;  Congieve  v.  Evetts,  10  Exch.  298,  23  Law  J.  Exch.  273;  Hope  v. 
Hayley,  5  El.  &  Bl.  830,  25  Law  J.  Q.  B.  155;  Chidell  v.  Galsworthy,  6  C.  B. 
(N.  S.)  471;  Allatt  v.  Carr,  27  Law  J.  Exch.  385;  Jones  v.  Richardson,  10 
Mete  (Mass.)  481;  Moody  v.  Wright,  13  Meta  (Mass.)  17;  Rice  v.  Stone,  1 
Allen,  566;  Head  v.  Goodwin,  37  Me.  182;  Emerson  v.  European  &  N.  A. 
Ry.  Co.,  67  Me.  387;  Williams  v.  Briggs,  11  R.  I.  476;  Gardner  v.  McEwen, 
19  N.  Y.  123;  Gressey  v.  Sabre,  17  Hun,  120;  Hamilton  v.  Rogers,  8  Md.  301; 
Gittings  v.  Nelson,  86  111.  591;  Hunter  v.  Bosworth,  43  Wis.  586. 

101  Langton  v.  Higgins,  28  Law  J.  Exch.  252. 

10  2  Congreve  v.  Evetts,  10  Exch.  298,  23  Law  J.  Exch.  273;  Hope  v.  Hay- 
ley,  5  El.  &  Bl.  830,  25  Law  J.  Q.  B.  155;  Chidell  v.  Galsworthy,  6  C.  B.  (N. 
S.)  471;  Allatt  v.  Carr,  27  Law  J.  Exch.  385;  Rowan  v.  Sharps'  Rifle  Manuf  g 
CJo.,  29  Conn.  283;  Rowley  v.  Rice,  11  Mete  (Mass.)  333;  Ghase  v.  Denny, 
130  Mass.  566;  Cook  v.  Corthell,  11  R,  I.  482;  Chapman  v.  Weimer,  4  Ohio 
St.  481;  McCaffrey  v.  Woodin,  65  N.  Y.  459.  See,  also,  cases  cited  in  pre- 
ceding note.  Contra:  Allen  v.  Goodnow,  71  Me.  420;  Deering  v.  Cobb,  74  Me, 
334.  As  to  the  revocability  of  the  license  to  seize:  Chynoweth  v.  Teuney, 
10  Wis.  341;  McCaffrey  v.  Woodin,  supra;  Jones,  Chat  Mortg.  (3d  Ed.)  g  105 
et  seq. 


Ch.    1]  THE   THING  SOLD.  25 

Potential  Existence. 

If,  however,  the  goods  have  a  "potential  existence,"  as  defined  in 
the  first  exception,  the  property  in  them  passes  upon  their  coming 
into  actual  existence.  In  this  way  a  man  may  sell  the  crop  of  hay 
to  be  grown  on  his  field,  the  wool  to  be  clipped  from  his  sheep  at 
a  future  time,  the  milk  that  his  cows  may  yield  the  coming  month, 
but  not  the  wool  of  any  sheep,  or  the  milk  of  any  cows,  that  he  may 
buy  within  the  year.^"^  The  exception  in  favor  of  goods  having  a 
"potential  existence"  is  doubted  by  Chalmers,  J.,  who  says  that 
there  is  no  rational  distinction  between  one  class  of  future  goods 
and  another,  and  that  the  supposed  rule  appears  never  to  have  been 
acted  on.^°*  But  the  dicta  of  the  English  cases  have  been  repeat- 
edly acted  on  in  the  United  States,  and  the  exception  is  here  gen- 
erally recognized.^*"' 
Ride  in  Equity. 

Similarly  in  equity,  which  treats  as  done  what  ought  to  be 
done,  a  contract  for  the  sale  of  goods  afterwards  to  be  acquired, 
provided  they  are  sufficiently  described  to  be  identified,  transfers 
the  beneficial  interest  in  them  to  the  buyer  as  soon  as  they  are  ac- 
quired.^"''    But  it  is  only  the  equitable  interest  which  passes,  and 

108  Grantham  v.  Hawley,  Hob.  132;  Robinson  v.  MacDonnell,  5  Maule  &  S. 
228;  14  Vln.  Abr.  tit.  "Grant,"  p.  50;  Shep.  Touch.  "Grant,"  241;  Perk.  §§  65, 
90.    See,  also,  Foster's  Case,  1  Leon.  42. 

104  Chalm.  Sale,  10. 

105  Unborn  offspring  of  animals:  Fonville  v.  Casey,  1  Murph.  3S9;  Hall  v. 
Hall,  24  Conn.  358.  During  gestation:  McCarty  v.  Blevins,  5  Yerg.  195; 
Sawyer  v  Gerrish,  70  Me.  254.  Butter  and  cheese  to  be  made:  Conderman 
V.  Smith,  41  Barb.  404.  Crop  not  yet  sown:  Brlggs  v.  U.  S.,  143  U.  S.  346, 
12  Sup.  Ct.  391;  Watkins  v.  Wyatt,  9  Baxt.  250;  Andrew  v.  Newcomb,  32 
N.  Y.  417,  421;  Rawlings  v.  Hunt,  90  N.  C.  270;  Gotten  v.  Willoughby,  83 
N,  C.  75  (already  sown);  McCown  v.  Mayer,  65  Miss.  537,  5  South.  98;  Moore 
V.  Byrum,  10  S.  C.  452;  Arques  v.  Wasson,  51  Cal.  620;  Headrick  v.  Brat- 
tain,  63  Ind.  438  But  not  where  the  grant  covered  an  indefinite  time.  Shaw 
V.  Gilmore,  81  Me.  396,  17  Atl.  314;  Pennington  v.  .Tones,  57  Iowa,  37,  10  N. 
W.  274.  See,  also,  Lewis  v.  Lyman,  22  Pick.  437;  Heald  v.  Builders'  Ins.  Co., 
Ill  Mass.  38;  Van  Hoozer  v.  Corey,  34  Barb.  9;  Smith  v.  Atkins,  18  Vt 
461,  Contra:  Comstock  v.  Scales,  7  Wis.  159;  Gittings  v.  Nelson,  86  111.  591; 
Hutchinson  v.  Ford,  9  Bush,  318. 

loeHolroyd  v.  Marshall,  10  H.  L.  Cas.  191,  33  Law  J.  Ch.  193;  Tailby  v. 
Official   Receiver,   13  App.   Cas.   523;    Collyer  v.   Isaacs,   19   Ch.  Div.  342; 


26  FORMATION    OF    TUE    CONTRACT.  [Ch.    1 

if,  before  the  buyer  gets  the  legal  property,  the  seller  disposes  of 
the  goods  to  a  bona  fide  purchaser  without  notice,  the  rights  of  the 
buyer  are  defeated.^ ''^ 
Wagering  Contract — Sale  of  Chance. 

It  was  once  held  that  a  contract  for  the  sale  of  goods  to  be  deliv- 
ered at  a  future  day,  when  the  seller  had  not  the  goods,  but  in- 
tended to  go  into  the  market  and  buy  them,  was  a  mere  wager  on 
the  price  of  the  commodity,  and  was  hence  invalid.^"*  But  this  doc- 
trine has  been  exploded.^"®  Nor  is  an  executory  contract  of  sale 
invalid  because  the  acquisition  of  the  thing  by  the  seller  is  uncer- 
tain, as  in  the  case  of  goods  to  arrive  by  a  certain  ship.""  It  is  only  in 
this  sense  that  there  can  be  the  sale  of  a  chance,  known  to  the  civil 
law  as  "venditio  spei."  "^  Thus  it  has  been  held  that  a  sale  of  fish 
to  be  caught  had  no  effect  to  pass  the  property  in  the  fish  when 
caught,"^  but  there  seems  no  reason  why  a  contract  by  a  fisherman 
to  sell  all  the  fish  he  might  catch  on  a  particular  voyage  should  not 
be  good  as  an  executory  agreement. 

Mitchell  V.  Winslow,  2  Story,  630,  Fed.  Cas.  No.  9,673;  Pennock  v.  CJoe,  23 
How.  117;  Beall  v.  White,  94  U.  S.  382;  Brett  v.  Carter,  2  Low.  458,  Fed. 
Cas.  No.  1,844;  Barnard  v.  Norwich  &  W.  R.  R.  Co.,  4  Clifie.  351,  Fed.  Cas. 
No.  1,007;  McCaffrey  v.  Woodin,  65  N.  Y.  459;  Benjamin  v.  Elmira,  J.  &  C. 
R.  Co.,  49  Barb.  441;  Philadelphia,  W.  &  B.  R.  Co.  v.  Woelpper,  64  Pa.  St. 
366;  Smithurst  v.  Edmunds,  14  N.  J.  Eq.  408;  Williams  v.  Winsor,  12  R.  I.  9; 
Apperson  v.  Moore,  30  Ark.  56;  Sillers  v.  Lester,  48  Miss.  513.  In  Massa- 
chusetts the  rule  appears  to  be  the  same  in  equity  as  at  law.  Moody  v. 
Wright,  13  Mete,  (Mass.)  17,  30;  Blanchard  v.  Cooke,  144  Mass.  225,  11  N. 
E.  83.  So,  also,  in  Wisconsin,  Hunter  v.  Bosworth,  43  Wis.  583.  The  cases 
cited  generally  relate  to  chattel  mortgages,  but  the  principles  discussed  ap- 
ply equally  to  sales.    See  Jones,  Chat.  Mortg.  (3d  Ed.)  §  173. 

107  Joseph  V.  Lyons,  15  Q.  B.  Div.  280,  54  Law  J.  Q.  B.  3;  Hallas  v.  Robin- 
son, 15  Q.  B.  Div.  2S8;   Morrill  v.  Noyes,  56  Me.  458,  466. 

10  8  Bryan  v.  Lewis,  Ryan  &  M.  386. 

109  Hibblewhite  v.  McMorine,  5  Mees.  &  W.  462;  Mortimer  v.  McCallan,  6 
Mees.  &  W.  58;  Appleman  v.  Fisher,  34  Md.  551;  Stanton  v.  Small,  3  Sandf. 
230;   Clarke  v.  Foss,  7  Biss.  541,  Fed.  Cas.  No.  2,852;    post,  p.  44. 

110  Hale  v.  Rawson,  27  Law  J.  C.  P.  189. 

111  Poth.  Cont.  de  Vente,  No.  61.  See  Buddie  v.  Green,  27  Law  J.  Exch. 
33,  34,  per  Martin,  B.:  Hitchcock  v.  Giddings,  4  Price,  135,  140,  per  Richards, 
C.  B.;  Hanks  v.  Palling,  6  El.  &  Bl.  659,  669,  25  Law  J.  Q.  B.  375,  per  Lord 
Campbell,  C.  J. 

112  Low  v.  Pew,  108  Mass.  347. 


Ch.   1]  MUTUAL   ASSENT   AND    FORM    OF   CONTRACT.  27 


MUTUAL  ASSENT  AND  rORM  OT  CONTRACT. 

14.  The  transfer  of  the  property  is  effected  by  the  mu- 
tual assent  of  the  parties  to  the  contract  of  sale. 

15.  At  common  la-w  a  contract  of  sale  may  be  made  in 
■writing  (either  with  or  without  seal),  or  by  word  of  mouth, 
or  may  be  implied  from  the  conduct  of  the  parties. 

Mutual  Assent. 

If  there  be  parties  capable  of  contracting,  and  a  thing  in  exist- 
ence and  owned  by  one  of  them,  the  property  in  the  thing  may  be 
transferred  wlienever  the  parties  mutually  assent  to  the  transfer. 
Neither  delivery  of  the  thing  nor  payment  of  the  price  is  necessary 
to  perfect  the  transfer.^^^  The  parties  may  make  whatever  bargain 
they  please.  They  may  agree  that  the  transfer  shall  take  effect  at 
once,  or  they  may  agree  that  it  shall  not  take  effect  until  after  de- 
livery or  payment,  or  the  happening  of  some  other  condition;  and 
if  they  express  their  intentions  clearly,  the  law  will  give  effect  to 
them. 

The  contract  of  sale,  like  other  contracts,  is  founded  on  mutual 
assent.  The  principles  of  law  which  govern  the  formation  of  the 
contract  are  the  same  as  those  which  govern  the  formation  of  con- 
tracts generally,  and  little  need  be  said  in  regard  to  them.  Thus 
an  offer  to  buy  or  to  sell,  in  order  to  ripen  into  a  binding  agree- 
ment, must  be  accepted,  and  the  acceptance  must  be  uncondi- 
tional;^^* and  until  acceptance,  but  not  after,  the  offer  may  be 
withdrawn.^  ^"^ 

»"  Benj.  Sales,  §  3;  Chalm.  Sale,  3;  post,  p.  83. 

11*  Hutchison  v.  Bowker,  5  Mees.  &  W.  535;  Hyde  v.  Wrench,  3  Beav.  3^; 
Jordan  v.  Norton,  4  Mees.  &  W.  155;  Felthouse  v.  Bindley,  11  C.  B.  (N.  S.> 
869,  31  Law  J.  C.  P.  204;  Minneapolis  &  St.  L.  Ry.  Co.  v.  Columbus  RoUing- 
MUl  Co.,  119  U.  S.  149,  7  Sup.  Ct.  168;  Carr  v.  Duvall,  14  Pet  77;  Myers  v. 
Smith,  48  Barb.  614;  Potts  v.  Whitehead,  23  N.  J.  Eq.  512;  Hutoheson  v. 
Blakeman,  8  Mete.  (Ky.)  80;  Smith  v.  Gowdy,  8  Allen,  566;  Eggleston  v. 
Wagner,  46  Mich.  610,  10  N.  W.  37;  Maclay  v.  Harvey,  90  111.  525;  Robinson 
V.  Weller,  81  Ga.  704,  8  S.  E.  447;  Maynard  v.  Tabor,  53  Me.  511;  Mcintosh 
V.  Brill,  20  U.  C.  C.  P.  426. 

115  Cooke  V.  Oxley,  3  Term  R.  653;  Routledge  v.  Grant,  4  Bing.  653; 
Paine  v.  Cave,  3  Term  R.  148;    Head  v.  Diggon,  3  Man.  &  R.  97;    Smith  v» 


28  FORMATION    OF   THE   CX)NTBACT.  [Ch,   1 

Effect  of  Mistake. 

From  the  principle  that  contracts  can  be  effected  only  by  mutual 
a,ssent,  it  follows  that  where,  throuj;h  some  mistake  of  fact,  each 
was  assenting  to  a  different  contract,  there  is  no  valid  agreement, 
notwithstanding  the  apparent  mutual  assent.^^' 
Mistake  as  to  Parties. 

Such  a  mistake  may  arise  as  to  the  person  with  whom  the  con- 
tract is  made.  Thus  if  G.  substitutes  himself  for  B.,  so  that  A. 
contracts  with  C.  under  the  belief  that  he  is  contracting  with  B., 
the  contract  is  void.  For  example,  if  a  buyer  sends  an  order  for 
goods  to  a  firm,  and  the  order  is  filled  by  a  different  firm,  which 
has  succeeded  the  firm  to  which  the  order  was  sent,  and  the  buyer 
supposes  it  to  have  been  filled  by  the  firm  to  whom  he  gave  the 
order,  there  is  no  contract.^^'  In  such  a  case  the  seller  could  re- 
cover the  goods  from  the  supposed  buyer,  if  he  refused  to  pay  for 
them,  provided  they  were  unconsumed,  but  he  could  not  recover  the 
price. 

Hudson,  6  Best  &  S.  431,  34  Law  J.  Q.  B.  145;  Dickinson  v.  Dodds,  2  Ch. 
Div.  463;  Byrne  v.  Van  Tienhoven,  5  C.  P.  Div.  344;  Stevenson  v.  McLean, 
5  Q.  B.  Div.  346;  Craig  v.  Harper,  3  Cush.  158;  Boston  &  M.  R.  Co,  v.  Bart- 
lett.  Id.  224;  Fislier  v.  Seltzer,  23  Pa.  St.  308;  Johnston  v.  Fessler,  7  Watts, 
48;  Grotenkemper  v.  Achtermeyer,  11  Bush,  222;  Tucker  v.  Woods,  12  Johns, 
190;  Faulkner  v.  Hebard,  26  Vt.  452;  Falls  v.  Gaither,  9  Port.  (Ala.)  605; 
Eskridge  v.  Glover,  5  Stew.  &  P.  264;  Larmon  v.  Jordan,  56  111.  204;  Johnson 
V.  Filkington,  39  Wis.  62.  As  to  contracts  by  letter,  see  Benj.  Sales,  §  44  et 
seq;  Pol.  Cont.  (4th  Ed.)  31  et  seq;  Id.  640  et  seq;  Langd.  Cas.  Cont.  993; 
"Contract  by  Letter,"  by  Prof.  Langdell,  7  Am.  Law  Rev.  432. 

lie  Benj.  Sales,  §  50;  Utley  v.  Donaldson,  94  U.  S.  29,  47.  Although  the 
general  rule  of  law  is  "ignorantia  juris  baud  excusat,"  when  the  word  jus 
is  used  in  the  sense  of  a  private  right,  that  maxim  has  no  application.  For 
example,  private  right  of  ownership  is  a  matter  of  fact;  and,  though  it  may 
also  be  the  result  of  matter  of  law,  if  parties  contract  under  a  mistake  as  to 
their  relative  rights,  the  agreement  is  liable  to  be  set  aside  as  having  pro- 
ceeded upon  a  common  mistake.    Jones  v.  Clifford,  3  Ch.  Div.  779,  per  Lord 

Westbm-y. 

11 T  Boulton  V.  Jones,  2  Hurl.  &  N.  504,  27  Law  J.  Exch.  117;  Boston  Ice  Co. 
V.  Potter,  123  Mass.  28.  As  to  fraudulert  impersonation,  post,  122.  Where  the 
plaintiffs  consigned  wool  to  a  broker  to  whom  they  would  not  sell,  on  the 
understanding  that  it  was  sold  to  an  undisclosed  principal  in  good  credit  with 
the  plaintiffs,  there  was  no  sale  to  the  broker,  and  he  had  no  power  to  convey 
a  good  title  to  a  buna  flde  purchaser.  RodlifC  v.  Dallinger,  141  Mass.  1,  4  N. 
E    805. 


Ch.   1]  MUTUAL   ASSENT   AND    FORM    OF    CONTRACT.  29 

Mistake  as  to  Tiling  Sold. 

Mistake  may  arise  as  to  the  identity  or  existence  of  the  thing 
sold.  When  a  person  has  entered  into  a  contract,  the  nature  of 
which  he  understands,  he  will  not  generally  be  heard  to  say  that 
his  meaning  was  not  expressed  in  his  words,  and  that  he  intended 
to  contract  for  something  different  from  that  which-  his  words 
naturally  indicate.^'*  But  a  contract  may  be  void  for  mistake 
when  two  things  have  the  same  names,  and  the  parties,  owing  to 
the  identity  of  names,  mean  different  things;  ^^'  for  example, 
where  the  buyer  agreed  to  buy  a  cargo  "to  arrive  ex  Peerless  from 
Bombay,"  and  there  were  two  ships  of  that  name,  and  the  buyer 
meant  one,  and  the  seller  the  other.^^o  q^  ^he  seller,  having  goods 
of  two  sorts,  may  undertake  to  sell  goods  of  one  sort  which  he 
mistakenly  supposes  are  contained  in  a  particular  package;  and 
if,  under  this  common  mistake,  the  parties  agree  to  buy  and  sell 
the  goods  in  that  package,  there  is  no  contract.^'^^  Or  the  mistake 
may  arise  by  the  fault  of  a  broker  who  makes  the  sale,  and  de- 
scribes a  different  article  to  each  party.^^^ 

As  we  have  seen,  if  the  subject  of  sale  is  not  in  existence  there 
is  no  contract,  and  this  both  upon  the  ground  of  impossibility  of 
performance  and  of  mutual  mistake.^ ^' 

118  Benj.  Sales,  §  417. 

118  Raffles  V.  Wichelhaus,  2  Hurl.  &  C.  906,  33  Law  J.  Exch.  160;  Kyle  v. 
Kavanagh,  103  Mass.  356. 

120  Raffles  V.  Wiclielhaus,  cited  in  preceding  note. 

121  Harvey  v.  Harris,  112  Mass.  32.  See,  also,  Sheldon  v.  Capron,  3  R.  I. 
171. 

122  Thornton  v.  Kempster,  5  Taunt.  786. 

123  Ante,  p.  23.  Mistake  as  to  the  situation  of  the  goods  may  avoid  the 
contract.  Ketchum  v.  Catlin,  21  Vt.  191.  Hervey  v.  Rhode  Island  Locomo- 
tive Works,  93  U.  S.  664;  March  v.  Wright,  46  111.  487;  Gross  v.  Jordan,  83 
Me.  380,  22  Atl.  250;  Summerson  v.  Hicks,  134  Pa.  St.  566, 19  Atl.  808;  Greer 
v.  Church,  13  Bush,  430;  Singer  Manuf'g  Co.  v.  Cole,  4  Lea,  439;  Hays  v. 
Jordan,  85  Ga.  749,  11  S.  E.  833;' National  Car  &  Locomotive  Builder  v.  Cy- 
clone Steam-Plow  Co.  (Minn.)  51  N.  W.  657.  "Sale  or  return,"  or  contract  of 
del  credere  agency.  Ex  parte  White,  6  Ch.  App.  397;  Nutter  v.  Wheeler,  2 
Low.  346,  Fed.  Cas.  No.  10,384;  In  re  Linforth,  4  Sawy.  370,  Fed.  Cas.  No. 
8,369.  Sale  or  agency:  First  Nat  Bank  v.  Kilbourne,  127  111.  573,  20  N.  E. 
681;  Braun  v.  Keally  (Pa.  Sup.)  23  Atl.  389;  Columbus  Construction  Co.  v. 
Crane  Co.,  3  C.  C.  A.  216,  9  U.  S.  App.  46,  52  Fed.  635;  National  Bank  v. 


30  FORMATION    OF    TUE    CONTRACT.  [Ch.   1 

Mistake  as  to  Price. 

As  price  is  an  essential  element  in  a  contract  of  sale,  a  mistake 
in  respect  to  the  amount  to  be  paid  may  avoid  the  contract/** 
as  when  the  price  named  was  f3.25,  and  one  party  thought  this 
meant  per  bunch,  and  the  other  per  1,000.^*" 
Mistake  must  go  to  tJie  Root  of  the  Contract. 

Mistake,  however,  to  have  the  effect  of  invalidating  the  contract, 
must  go  to  the  root  of  the  contract,  and  must  be  such  as  to  negative 
the  idea  that  the  parties  were  ever  ad  idem;^^°  for,  if  the  buyer 
purchases  the  very  article  at  the  very  price  and  on  the  very  terms 
intended  by  him  and  by  the  seller,  the  sale  is  completed  by  mutual 
assent,  even  if  it  may  be  liable  to  be  avoided  for  fraud,  illegality,  or 
some  other  cause,^^''  or  even  though  the  buyer  and  the  seller  may 
be  totally  mistaken   in  the  motive   which  induces  the  assent.^*' 

Goodyear  (Ga.)  16  S.  E.  962.  Contract  of  sale  or  of  guaranty:  Hutton  v.  Lip- 
pert,  8  App.  Cas.  309.  Transaction  held  to  be  executed  sale,  though  bill  of 
sale  read,  "I  agree  to  sell."    Bangs  v.  Friezen,  36  Minn.  423.  32  N.  W.  173. 

124  Phillips  V.  Bistolli,  2  Barn.  &  C.  511;  Rupley  v.  Daggett,  74  III.  351; 
Rovegno  v.  Defferari,  40  Cal.  459. 

12  6  Greene  v.  Bateman,  2  Woodb.  &  M.  359,  Fed.  Cas.  No.  5,762.  Where 
the  seller,  intending  to  offer  cattle  for  $261.50,  by  a  lapsus  linguae  offered 
them  for  5^161.50,  and  the  buyer,  having  good  reason  to  suppose  that  the 
offer  was  a  mistake,  accepted  it,  and  paid  $20  on  account,  and  the  seller  ten- 
dered back  the  $20  and  repudiated  the  sale,  the  buyer  was  not  entitled  to 
maintain  replevin.    Harran  v.  Foley,  62  Wis.  584,  22  N.  W.  837. 

128  Pol.  Cont.  (4th  Ed.)  411. 

12T  Post,  cc.  5.  6. 

i28Benj.  Sales,  §  54.  Mistaken  belief  that  thing  would  answer  a  certain 
purpose:  Chanter  v.  Hopkins,  4  Mees.  &  W.  399;  OUivant  v.  Bayley,  5  Q.  B. 
288;  Prideaux  v.  Bunnett,  1  C.  B.  (N.  S.)  613.  Mistake  as  to  condition  of 
horse:  Wheat  v.  Cross,  31  Md.  99.  Mistake  as  to  solvency  of  maker  of  note 
bought  through  broker:  Hecht  v.  Batcheller,  147  Mass.  335,  17  N.  E.  651; 
Taylor  v.  Fleet,  4  Barb.  95.  Where  a  woman  sold  an  uncut  diamond  for  $1 
to  a  jeweler,  both  being  ignorant  of  its  value,  and  it  proved  to  be  worth 
$1,000,  she  could  not  rescind.  Wood  y.  Boynton,  64  Wis.  265,  25  N.  W.  42. 
It  is  difficult  to  reconcile  with  the  current  of  authority  the  case  of  Sher- 
wood V.  Walker,  66  Mich.  568,  33  N.  W.  919,  where  the  subject  of  sale  was 
a  blooded  cow,  believed  by  the  parties  to  be  barren,  and  hence  worth  only 
$80,  which  was  the  price,  but  actually  capable  of  breeding,  and  hence  worth 
$750  or  .iil.OOO,  and  ii  was  held  that  tlie  seller  could  rescind  on  the  ground 
that  the  mistake  affected  the  substance  of  the  whole  consideration. 


Ch.   1]  MUTUAL   ASSENT   AND    FORM   OF   CONTRACT.  31 

Form  of  Contract. 

Aside  from  the  provisions  of  the  statute  of  frauds,  which  will  be 
considered  later,  no  writing  or  other  formality  is  necessary  to  effect 
a  sale  or  contract  for  sale.  If  the  contract  is  in  writing,  the  ordinary 
rules  of  evidence  apply.  If  the  assent  of  the  parties  is  not  clearly 
expressed,  it  may  be  implied  from  their  language  ^^^  or  conduct,  as 
if  a  customer  takes  goods  from  a  counter,  and  nothing  is  said  as 
to  price,  a  contract  to  pay  their  reasonable  value  is  implied.^ ^° 
In  the  same  way,  where  there  is  an  express  contract,  and  goods 
are  sent  which  are  not  in  accordance  with  it,  but  which  neverthe- 
less the  buyer  keeps,  a  contract  to  pay  for  them  is  implied.  This 
doctrine  is  most  frequently  applied  where  the  contract  is  for  a 
certain  quantity  of  goods,  only  a  part  of  which  are  delivered.^"* 
Sale  by  Suit. 

There  is  one  case  where  a  sale  takes  place  by  implication  of  law 
rather  than  by  the  mutual  assent  of  the  parties,  either  express  or 
implied.  Where  in  an  action  for  trespass  to  goods,  or  the  deten- 
tion or  wrongful  conversion  thereof,  the  plaintiff  recovers  the  value 
of  the  goods,  as  damages,  and  the  defendant  satisfies  the  judgment, 
the  transaction  operates  as  a  sale  of  the  goods  by  the  plaintiff  to 
the  defendant.^ ^*     An  unsatisfied  judgment  does  not  pass  the  prop- 

gjvj-y    133 

129  A  "grumbling"  assent    Joyce  v.  Swann,  17  C.  B.  (N.  S.)  84,  101. 

130  Bl.  Comm.  bk.  2,  c.  30;  Hoadly  v.  McLaiue,  10  Bing.  482,  487,  per  Tindal, 
C.  J.  Using  goods  sent  without  order,  with  knowledge  that  the  sender  ex- 
pects payment,  constitutes  an  Implied  sale.  Wellauer  v.  Fellows,  48  Wis. 
105,  4  N.  W.  114;  Indiana  Manuf'g  Co.  v.  Hayes,  155  Pa.  St.  160,  26  Atl.  6. 

131  Oxendale  v.  Wetherell,  9  Bam.  &  G.  386;  Colonial  Ins.  Co.  of  New 
Zealand  v.  Adelaide  Mar.  Ins.  Co.,  12  App.  Cas.  128,  138;  Richardson  v. 
Dunn,  2  Q.  B.  218;  Hart  v.  Mills,  15  Mees.  &  W.  85;  Bowker  v.  Hoyt,  18 
Pick.  555;  Sentell  v.  Mitchell,  28  Ga.  196;  Richards  v.  Shaw,  67  111.  222; 
Flanders  v.  Putney,  58  N.  H.  358;  Booth  v.  Tyson,  15  Vt.  515,  518.  Oxen- 
dale  V.  Wetherell,  supra,  has  sometimes  been  disapproved.  Champlin  v.  Row- 
ley, 13  Wend.  258,  18  Wend.  187;  Kein  v.  Tupper,  52  N.  Y.  555;  Witherow 
V.  Witherow,  16  Ohio,  238.    See  post,  p.  190. 

13  2  Jenk.  4  Cent.  88;  Cooper  v.  Shepherd,  8  C.  B.  206,  15  Law  J.  C.  P.  237. 
On  principle,  the  recovery  would  only  have  this  effect  where  the  value  of 
the  thing  converted  is  included  in  the  judgment.    Benj.  Sales,  §  49. 

133  Brinsmead  v.  Harrison,  L.  R.  G  C.  P.  584,  affirmed  in  L.  R.  7  G.  P.  547; 
Ex  parte  Drake,  5  Ch.  Div.  866;  Hepburn  v.  Sewell,  5  Har.  &  J.  211;  Love- 


32  FORMATION    OF   THE    CONTRACT.  [Ch.    1 

Whether  the  Contract  be  of  Sale  a  Question  of  Intention, 

Whether  a  contract  be  a  contract  of  sale,  or  some  other  kind  of 
a  contract,  is  a  question  of  substance,  not  of  form,  and  depends 
on  the  intention  of  the  parties.  Thus,  as  has  been  seen,  it  is  a  ques- 
tion of  the  reaJ  meaning  of  the  parties,  whether  a  contract  is  to 
be  construed  as  a  contract  of  sale  or  of  bailment;^'*  and  the  law 
will  look  to  the  substance  of  the  transaction,  and  not  to  the  name 
by  which  the  parties  designate  it.^^"^  And  if  the  mutual  intention 
to  buy  and  sell  be  wanting  there  is  no  sale.  Thus  the  sale  of  an 
article  containing  a  hidden  treasure  is  no  sale  of  the  treasure;^" 
and  if,  by  mistake,  other  goods  than  those  agreed  upon  be  de- 
livered, the  property  in  the  goods  is  not  transferred.*" 

THE  PRICE. 

16.  The  price  may  be  fixed  by  the  contract  of  sale,  or 
may  be  left  to  be  fixed  in  a  manner  thereby  agreed,  or 
may  be  left  to  subsequent  arrangement. 

17.  When  tlie  price  is  not  determined  by  the  contract  of 
sale,  the  lavsr  implies  an  agreement  to  pay  a  reasonable 
price. 

As  has  been  stated,  the  consideration  for  a  sale  must  be  a  price 
in  money,  paid  or  promised.  Where  the  price  has  been  expressly 
agreed  on,  no  question  can  arise.  But  the  price  need  not  be 
specified,  if  it  can  be  ascertained  in  accordance  with  the  contract.*'* 

joy  V.  Murray,  3  Wall.  1,  16;  Osteihout  v.  Roberts,  8  Cow.  43;  Marsden  v. 
Cornell,  62  N.  Y.  215;  Brady  v.  Whitney,  24  Mich.  154.  Contra:  Floyd  v. 
Brown,  1  Rawle,  121;  Marsh  v.  Pier,  4  Rawle,  273;  Merrick's  Estate,  5 
Watts  &   S.   17. 

18*  Ante,  p.  3. 

ISO  Sale  or  lease.  Hervey  v.  Rhode  Island  Locomotive  Works,  93  U.  S. 
664.    Post,  3. 

i8«  Merry  v.  Green,  7  Mees.  &  W.  623;  Huthmacher  y.  Harris*  Adm'rs,  38 
Pa.  St  491;  Durfee  v.  Jones,  11  R.  I.  588;  Bowen  v.  Sullivan,  62  Ind.  281; 
Ray  V.  Light,  34  Ark.  421.    Cf.  Gardner  v.  Lane,  9  Allen,  492. 

187  Gardner  v.  Lane,  9  Allen,  492. 

issvalpy  V.  Gibson,  4  C.  B.  837,  at  page  864,  per  Wilde,  C.  J.;  Joyce  v. 
Swann,  17  C.  B.  (N.  S.)  84,  100;  Holbrook  v.  Setchel,  114  Mass.  435;  Chalm. 
Sale,  §  9. 


Ch.   1]  THE    PRICE.  83 

"Id  certum  est  quod  certum  reddi  potest."  ^'*  For  example,  the 
price  may  be  left  to  be  fixed  by  the  market  price  of  the  com- 
modity/*" or  by  the  price  another  article  shall  fetch  at  auction/*^ 
or  by  the  price  the  tiling  sold  may  afterwards  fetch/ *^  or  by 
future  arrangement/*^  or  by  the  valuation  of  a  third  person.^**  If 
such  third  person  cannot  or  does  not  make  the  valuation,  the  agree- 
ment is  avoided/*^  though  if  the  goods,  or  any  part  of  them,  have- 
been  delivered,  and  appropriated  by  the  buyer,  he  must  pay  a 
reasonable  price  for  them.^**  But  as  the  assent  to  the  sale  may  be 
implied,  as  well  as  express,  so  the  assent  to  the  payment  of  a  reason- 
able price  may  be  implied  from  the  circumstances.^*'  This  im- 
plication arises  naturally  when  the  sale  has  been  executed,  but  an 
agreement  to  pay  a  reasonable  price  may  also  be  implied  in  an 
executory   contract.^*®     Such   cases   are,   of   course,   to   be   distiu- 

139  Brown  v.  Bellows,  4   Pick.    179,    189. 

140  Price  10  cents  less  than  Milwaukee  price  on  any  day  seller  might  name. 
McConuell  v.  Hughes,  29  Wis.  537.  Market  price  when  buyer  should  demand 
payment.  McBriile  v.  Silverthorue,  11  U.  C.  Q.  B.  545;  Phifer  v.  Erwin,  100 
N.  C.  59,  6  S.  E.  G72.  Price  to  be  regulated  by  the  price  of  gold.  Ames  v. 
Quimby,  96  U.  S.  324.    Cf.  Acebal  v.  Levy,  10  Bing.  370,  382. 

1*1  Cunningham  v.   Brown,  44  Wis.  72. 

142  Phifer  V.  Erwin.  100  N.  C.  59,  6  S.  E.  672. 

143  Where  the  sale  is  for  a  reasonable  price,  to  be  afterwards  agreed  upon, 
the  title  passes,  if  such  is  the  mutual  intention,  though  no  price  is  afterwards 
agreed  upon.  Greene  v.  Lewis,  85  Ala.  221,  4  South.  740.  Otherwise  where 
the  Intention  is  to  defer  the  passing  of  title  till  the  price  shall  be  agreed  on. 
Wittkowsky  v.  Wasson,  71  N.   C.  451. 

144  Brown   v.   Bellows,   4    Pick.   179,    189. 

14  6  Thurnell  v.  Balbirnie.  2  Mees.  &  W.  786;  Cooper  v.  Shuttleworth,  25 
Law  J.  Exch.  114;  Vickers  v.  Vickers,  L.  R.  4  Eq.  529;  Milnes  v.  Gery,  14 
Ves.  400;  Wilks  v.  Davis,  3  Mer.  507;   Benj.  Sales.  §  87;   Chalm.  Sale,  §  10. 

i*c  Clarke  v.  Westrope,  25  Law  .T.  C  P.  287.  Valuation  prevented  by  seller. 
Humaston  v.  Telegraph  Co.,  20  Wall.  20;  Henniston  v.  Ham,  9  Post  (N.  H.> 
BOl.  The  same  rule  was  applied  where  the  goods  had  been  constructively, 
but  not  actually,  delivered,  and  the  seller  prevented  the  valuation,  on  the 
ground  that  prevention  was  equivalent  to  performance.  Smyth  v.  Craig,  3 
Watts  &   S.    14. 

147  Acebal  v.  Levy,  10  Bing.  376;  Bennett  v.  Adams,  2  Cranch,  C.  C.  551, 
Fed.  Cas.  No.  1,316;  Taft  v.  Travis,  136  Mass.  95;  James  v.  Muir,  33  Mich. 
223;  Lovejoy  v.  Michels.  88  Mich.  15,  49  N.  W.  901;  McEwen  v.  Moiey,  60 
lU.  32. 

148  Uoadly  v.  McLaine,  10  Bing.  482;  Valpy  v.  Gibson,  4  C.  B.  837. 

SALES — 3 


34  FORMATION    OF   THE    CONTRACT.  [Cll.    1 

guished  from  cases  in  which  the  contract  of  sale  has  never  been  com- 
pleted, by  reason  of  fail  are  to  agree  upon  a  price.^**  What  is  a 
reasonable  price  is  a  question  of  fact,  dependent  on  the  circum- 
stances of  each  particular  case;  for,  while  a  reasonable  price  is 
ordinarily  the  market  price,  the  market  price  may  be  unreason- 
able, from  accidental  circumstances,  as  on  account  of  the  commodity 
having  been  kept  back  by  the  seller  himself.^ ''° 

i*»  Bigley  V.  Rlsher,  63  Pa.  St.  152;  Foster  v.  Lumbermen's  Mln.  Co.,  68 
Mich.  188,  36  N.  W.  171;  Whiteford  v.  Hitchcock,  74  Mich.  208,  41  N.  W.  898. 

iBo  Acebal  v.  Levy,  10  Bing.  376,  per  Tindal,  C.  J.,  383;  Jamea  y.  Mulr,  33 
Mich.  223;  Lovejoy  v.  Michels,  88  Mich.  15,  49  N.  W.  901. 


Ch.  2]  WHAT   C0NTBACT8    ARE    WITHIN   THE   8TATUTB.  35 


CHAPTER  n. 

FORMATION   OF  CONTRACT  (Continued)— UNDER  THE  STATUTE  OF 

FRAUDS. 

18-20.  What  Contracts  are  Within  the  Statute. 

21-22.  What  are  Goods,  Wares,  and  Merchandise. 

23.  What  is  a  Contract  for  the  Price  or  Value  of  £10  ($50). 

24-26.  Acceptance  and  Receipt. 
27-29.  Acceptance. 

30-31.  Actual  Receipt 

82-33.  Earnest  or  Part  Payment. 

34-36.  The  Note  or  Memorandum. 
87-38.  Siguature  of  the  Party. 

39-40.  Agents  Authorized  to  Sign. 

41.  Effect  of  Noncompliance  with  the  Statute. 


WHAT  CONTRACTS  ARE  WITHIN  THE  STATUTE. 

18.  The  seventeenth  section  of  the  English  statute  of 
frauds,  which  has  been  substantially  followed  in  most  of 
the  states  and  territories  of  the  United  States,  enacts  that 
"no  contract  for  the  sale  of  any  goods,  wares,  or  merchan- 
dises, for  the  price  of  ten  pounds  sterling,  or  upwards,  shall 
be  allow^ed  to  be  good,  except 

(a)  The  buyer  shall  accept  part  of  the  goods  so  sold, 

and  actually  receive  the  same, 

(b)  Or  give  something  in  earnest  to  bind  the  bargain, 

or  in  part  payment, 

(c)  Or  that  some   note   or  memorandum  in  vtrriting  of 

the  said  bargain  be  made  and  signed  by  the 
parties  to  be  charged  by  such  contract,  or  their 
agents  thereunto  lawfully  authorized." 

19.  The  statute  of  frauds  applies  to  executory  as  well 
as  executed  contracts  of  sale. 

20.  The  statute  does  not  apply  to  contracts  for  work, 
labor  and  materials.      The  rule   for  determining  whether 


36  FORMATION    OF    THE    CONTRACT.  [Ch.  3 

the  contract  is  for  \\rork,  labor  and  materials,  or  a  contract 
of  sale,  varies  in  different  jurisdictions. 

(a)  ENGLISH  RULE— The  English  rule,  which  is  fol- 

lowed in  some  states,  is  that  a  contract  whereby 
the  property  in  a  chattel  is  to  be  transferred  for 
a  price  from  one  person  to  another  is  a  contract 
of  sale,  and  is  w^ithin  the  statute,  although  the 
chattel  is  to  be  the  product  of  the  work,  labor, 
and  materials  of  the  person  w^ho  is  to  transfer 
the  property. 

(b)  MASSACHUSETTS    RULE  —  The    Massachusetts 

rule,  which  is  followed  in  some  states,  is  the 
same,  except  that  if  the  chattel  is  to  be  manu- 
factured especially  for  the  buyer,  upon  his  spe- 
cial order,  and  is  not  such  as  the  seller  in  his 
ordinary  business  manufactures  for  the  general 
market,  the  contract  is  for  work,  labor,  and  ma- 
terials, and  is  not  within  the  statute. 
(0)  NEW  YORK  RULE— The  New  York  rule,  which 
is  follow^ed  in  some  states,  is  that  a  contract  for 
the  sale  of  a  chattel  not  in  existence,  which 
the  seller  is  to  manufacture,  is  a  contract  for 
w^ork,  labor,  and  materials,  and  is  not  witliin  the 
statute;  but,  if  the  chattel  is  in  existence,  the 
contract  is  one  of  sale,  and  is  w^ithin  the  statute, 
although  the  seller  is  to  adapt  it  to  the  use  of 
the  buyer. 

The  common  law,  which  recognized  the  validity  of  verbal  con- 
tracts of  sale  of  personal  property  for  any  amount,  and  however 
proved,  was  greatly  modified  by  the  seventeenth  section  of  the  stat- 
ute of  29  Car.  II.  c.  3,  known  as  the  "statute  of  frauds,"  which  has 
been  quoted  above.  To  reproduce  here  the  language  of  the  vari- 
ous similar  enactments  in  the  United  States  would  be  impossible,* 

»  This  section  is  not  in  force  in  Rhode  Island,  Delaware,  Pennsylvania, 
Virginia,  North  Carolina,  Mississippi,  Kentucky,  Tennessee,  Ohio,  Illinois, 
Kansas,  or  Texas.     See  Browne,  St.  Frauds,  §  117. 


Ch.  2]  WHAT    CONTRACTS    ARE    WITHIN    THE   STATUTE.  37 

nor  is  it  necessary  to  do  so,  as  their  provisions  are  in  the  main 
substantially   the   same   as   those   of   the   English   original.     The 
latter  will  therefore  serve  as  the  basis  of  discussion. 
Executed  and  Executory  Contracts. 

A  question  arose  at  an  early  day,  on  which  in  England  the  cases 
were  conflicting,  whether  the  words  "contract  of  sale,"  as  used  in 
the  statute,  apjjlied  to  executory  contracts,  or  merely  to  executed 
contracts,  of  sale.^  The  question  was  settled  in  England  by  "Lord 
Tenterden's  Act,"  ^  so  called,  which  enacted  that  the  provisions  of 
the  seventeenth  section  "shall  extend  to  all  contracts  for  the  sale 
of  goods  of  the  value  of  ten  pounds  sterling  and  upwards,  notwith- 
standing the  goods  may  be  intended  to  be  delivered  at  some  future 
time,  or  may  not  at  the  time  of  such  contract  be  actually  made, 
procured,  or  provided,  or  fit  or  ready  for  delivery,  or  some  act  may  be 
requisite  for  the  making  or  completing  thereof,  or  rendering  the 
same  fit  for  delivery."  The  two  enactments  must  be  construed  to- 
gether,* and  Lord  Tenterden's  act  appears  to  be  merely  declara- 
tory of  the  true  construction  of  the  statute  of  frauds."  In  the 
United  States,  it  has  been  universally  held,  without  the  interven- 
tion of  the  legislature,  and  in  conformity  with  the  apparent  policy 
and  natural  construction  of  the  statute,  that  it  applies  as  well  to 
executory  as  to  executed  sales.^ 
Contract  of  SaU  or  Contract  for  Work,  Labor,  and  Materials — English  Rule. 

Another  question  has  arisen  as  to  the  meaning  of  "contract  of 
sale,"  on  which  there  was  long  a  conflict  of  opinion  in  England, 

2  That  executory  contracts  were  not  within  the  statute,  see  Towers  v. 
Osborne,  1  Strange,  50L1;  Clayton  v.  Andrews,  4  Burrows,  2101;  Groves  v. 
Buck,  3  Maule  &  S.  178.  Contra,  Rondeau  v.  Wyatt,  2  H.  Bl.  63;  Cooper 
V.  Elston,  7  Term  R.  14;   Garbutt  v.  Watson,  5  Barn.  &  Aid.  613. 

8  9  Geo.  IV.  c.  14,  §  7. 

*  Chalm.  Sale,  8;  Scott  v.  Eastern  Counties  Ry.  Co.,  12  Mees.  &  W.  33; 
Harman  v.  Reeve,  18  C.  B.  587,  25  Law  J.  C.  P.  257. 

6  Langd.  Cas.  Sales,  1025. 

6  Newman  v.  Morris,  4  Har.  &  McH.  421;  Bennett  v.  Hull,  10  Johns.  364; 
Orookshank  v.  Burrell,  18  Johns.  58;  Jackson  v.  Covert,  5  Wend.  139;  Ide 
V.  Stanton,  15  Vt.  685;  Waterman  v.  Meigs,  4  Cush.  497;  Hight  v.  Ripley,  19 
Me.  137;  Edwards  v.  Grand  Trunk  Ry.  Co.,  48  Me.  379;  Atwater  v.  Hough, 
29  Conn.  508;  Carman  v.  Smick,  15  N.  J.  Law,  252;  Finney  v.  Apgar,  31  Is'. 
J.  Law,  266;  Cason  v.  Cheely,  6  Ga.  554. 


38  FORMATION    OF   THE    CONTRACT.  [Ch.  2 

and  on  which  different  conclusions  have  been  reached  in  the 
United  States,  namely,  whether  a  contract  for  the  sale  of  goods  to 
be  afterwards  manufactured  is  a  "contract  of  sale,"  or  a  mere  con- 
tract for  work  and  labor  done  and  materials  furnislied,  to  which 
the  statute  does  not  apply.''  The  conclusiou  which  has  finally 
been  reached  in  Enjj^land,  and  iu  several  states  in  America,  is  that  if 
the  contract  is  intended  to  result  in  transferring  for  a  price  a  chat- 
tel it  is  a  contract  for  the  sale  of  a  chattel,  notwithstanding  that 
the  chattel  is  not  in  existence  at  the  time  of  the  contract,  and  is  to 
be  the  product  of  the  labor  and  materials  of  the  seller,  and  that 
unless  the  contract  is  intended  to  result  in  the  transfer  of  a  chattel 
the  contract  is  not  one  of  sale.  This  test  was  first  clearly  stated 
and  applied  in  the  leading  case  of  Lee  v.  Griffin,®  decided  in  the 
queen's  bench  in  18G1.  That  action  was  brought  by  a  dentist  to 
recover  for  tw^o  sets  of  artificial  teeth  ordered  by  a  deceased  lady 
of  whom  the  defendant  was  executor,  and  it  was  held  that  the  con- 
tract was  one  of  sale,  and  not  for  work,  labor,  and  materials. 
Blackburn,  J.,  said:  "If  the  contract  be  such  that  it  will  result  in 
the  sale  of  a  chattel,  the  proper  form  of  action,  if  the  employer 
refuses  to  accept  the  article  when  made,  would  be  for  not  accept 
ing.  But  if  the  work  and  labor  be  bestowed  in  such  a  manner  as 
that  the  result  would  not  be  anything  which  could  properly  be 
said  to  be  the  subject  of  sale,  then  an  action  for  work  and  labor  is 
the  proper  remedy." 

Before  the  case  of  Lee  v.  Griffin,  three  other  principles  had  been 
suggested  in  England  as  affording  a  test  in  such  cases,  and  as  the 
earlier  English  views  have  been  influential  in  shaping  the  decisions 
in  this  country,  and  throw  light  upon  the  question  involved,  they 
may  be  briefly  stated:  First.  It  was  suggested  that,  if  the  subject- 
matter  of  the  contract  is  not  in  existence,  the  contract  is  not  for 
the  sale  of  goods.®  Thus  in  Groves  v.  Buck  ^°  it  was  held  on  this 
ground  that  a  contract  for  the  sale  of  oak  pins  to  be  cut  by  the 

T  Benj.  Sales,  §§  94-107. 

8  1  Best  &  S.  272,  30  Law  J.  Q.  B.  252. 

»  Groves  v.  Buck,  3  Maule  &  S.  178;  Garbutt  v.  Watson,  5  Barn.  &  Aid. 
613,  per  Abbott,  C.  J.;  Rondeau  v.  Wyatt.  2  IT.  Bl.  G3,  per  Lord  Lough- 
borough;  Cooper  V.  Elston,  7  Term  li.  14,  per  Lord  Kenyon,  0.  J. 

10  3  Maule  &  S.  178. 


Ch.  2]  WHAT   CONTRACTS    ARK    WITHIN    THK   STATUTE.  39 

plaintiff  out  of  slabs  owned  by  him  was  not  within  the  statute. 
Second.  It  was  suggested  that,  if  the  materials  be  furnished  by 
the  employer,  the  contract  is  for  work  and  labor,  and  not  of  sale; 
but  that  if  the  materials  be  furnished  by  the  workman,  who  makes 
the  chattel,  he  cannot  maintain  work  and  labor,  because  his  labor 
is  bestowed  on  his  own  materials  and  for  himself."  The  first 
branch  of  this  rule  falls  within  Lee  v.  Griffin,  because,  if  the  mate- 
rials are  furnished  by  the  employer,  there  can  be  no  sale  of  them 
to  him.  But  the  second  branch  of  the  rule  is  inaccurate,  since 
a  man  may  be  employed  to  do  work  on  his  own  materials  without 
an  intention  on  the  part  of  himself  and  his  employer  to  transfer 
the  property  in  the  completed  article;  for  example,  to  expend 
work  and  materials  in  perfecting  an  invention. ^^  Third.  It  was 
suggested  that  the  true  test  was  "whether  the  work  and  labor  is 
the  essence  of  the  contract,  or  whether  it  is  the  materials  that  are 
found."  ^'  But  the  fatal  objection  to  this  test,  as  pointed  out  by 
Benjamin,^*  and  indeed  to  any  test  except  that  applied  in  Lee  v. 
Griffin,  is  that,  however  small  the  relative  value  of  the  materials 
to  the  labor,  as  in  the  case  of  a  painting,  the  employer  cannot  get 
title  to  the  thing  except  through  the  transfer  of  the  property  in  it 
from  the  maker.  And  it  is  the  acquisition  of  the  thing  by  the 
employer  which  the  contract  really  contemplates.  It  is  true  that 
extreme  cases  may  be  put,  such  as  that  of  an  attorney  employed  to 
draw  a  deed  and  using  his  own  paper  and  ink,  or  that  of  a  man 
sending  a  button  to  be  used  by  his  tailor  in  making  a  coat.  But 
such  trifling  matters  cannot  be  considered  as  having  entered  into 
the  contemplation  of  the  parties,  nor  as  forming  part  of  the  real 
consideration,  and  are  to  be  disposed  of  by  the  rule,  "De  minimis 
non  curat  lex."  ^' 

11  Smith  V.  Surman,  9  Barn.  &  C.  568,  per  Bayley,  J.;  Atkinson  v.  Bell,  8 
Barn.  &  C.  277,  per  Bayley,  J. 

12  Grafton  v.  Armltage,  2  C.  B.  336,  15  Law  J.  C.  P.  20.  Or  If  a  farrier  be 
employed  professionally,  using  his  own  medicines,  there  is  no  sale  of  the 
medicine,  but  the  contract  is  for  work,  labor,  and  materials.  Clark  v.  Mum- 
ford,  3  Camp.  37;    Langd.  Cas.  Sales,  1039. 

18  Clay  V.  Yates,  1  Hurl.  &  N.  73,  25  Law  J.  Bxch.  237. 
1*  Benj.  Sales,  §  106. 
"  Benj.  Sales,  §  107. 


40  FORMATION    OF    THE   CONTRACT.  [Ch.   2 

Same — Massachvsetts  Rule. 

In  the  Eu;^lish  case  of  Garbutt  v.  Watson,^*  where  a  contract  for 
the  sale  of  flour  to  be  manufactured  was  held  to  be  within  the  stat- 
ute, Abbott,  C.  J.,  remarked:  "In  Towers  v.  Osborne  [1  Strange, 
50G],  the  chariot  which  was  ordered  to  be  made  would  never,  but  for 
that  order,  have  had  anv  exis^tence.  But  here  the  plaintiffs  were  pro- 
ceeding to  grind  the  flour  for  the  purpose  of  general  sale,  and  sold 
this  flour  to  the  defendant  as  part  of  their  general  stock."  In  ac- 
cordance with  this  dictum,  though  not  expressly  upon  its  authority, 
it  was  held  in  Mixer  v.  Howarth  ^^  that  a  contract  to  build  a 
buggy  for  the  defendant  out  of  materials  partly  wrought,  but  not 
put  together,  was  not  a  contract  of  sale  within  the  statute,  and 
Shaw,  C.  J.,  said  that  "when  the  contract  is  a  contract  of  sale, 
either  of  an  article  then  existing,  or  of  articles  which  the  vendor 
usually  has  for  sale  in  the  course  of  his  business,  the  statute  ap- 
plies." In  Gardner  v.  Joy,^®  on  the  other  hand,  where  the  defend- 
ant ordered  100  boxes  of  candles,  at  21  cents  a  box,  which  the  plain- 
tiff was  to  manufacture,  the  same  judge  held  that  the  ease  was  not 
distinguishable  from  Garbutt  v.  Watson.  And  in  a  later  case  ^' 
he  laid  down  the  distinction  that  "when  a  person  stipulates  for 
the  future  sale  of  articles  which  he  is  habitually  making,  and 
which  at  the  time  are  not  made  and  finished,  it  is  essentially  a  con- 
tract of  sale,  and  not  a  contract  for  labor;  otherwise,  when  the 
article  is  made  pursuant  to  the  agreement."  In  Goddard  v.  Bin- 
ney,'°  in  which  the  facts  are  similar  to  those  in  IMixer  v.  Howarth, 
the  court  refers  to  Lee  v.  Griffin,  but  adheres  to  the  Massachusetts 
rule,  the  correctness  and  justice  of  which  it  approves. 
Same — New  York  Rule. 

The  principle  acted  on  in  the  earlier  English  cases,  that  a  con- 
tract for  the  sale  of  an  article  not  in  existence  is  not  within  the 

18  5  Barn.  &  Aid.  613. 

17  21  Pick.  20.5. 

18  9  Mete.  (Mass.)  177. 

i»  Lamb  v.  Crafts,  12  Mete.  (Mass.)  356. 

to  115  Mass.  450.  See,  also,  Spencer  v.  Cone,  1  Mete.  (Mass.)  283;  Water- 
man V.  Meigs,  4  Cush.  497;  Clark  v.  Nichols,  107  Mass.  547;  DowUng  T. 
McKennej,  124  Mass.  480;    May  v.  Ward,  134  Mass.  127. 


Ch.  2]  WHAT  CONTRACTS    AKE    WITHIN    THE    STATUTE.  41 

statute,^^  is  the  foundation  of  the  so-called  New  York  rule.  Thus 
in  Crookshank  v.  Burrell  ^^  it  was  held  that  a  contract  to  manu- 
facture the  woodwork  of  a  wagon  was  not  within  the  statute,  and 
in  Sewall  v.  Fitch  ^^  the  same  decision  was  reached  in  regard  to  a 
contract  to  sell  rails  which  were  to  be  made  by  the  seller;  and  the 
rule  was  enunciated  that  a  contract  for  the  sale  of  goods  existing 
in  solido  is  within  the  statute,  but  that  a  contract  for  the  sale  of 
goods  not  yet  made,  and  to  be  delivered  at  a  future  day,  is  a  con- 
tract for  work  and  labor,  and  is  not  within  the  statute.  In  Downs 
V.  Koss,^*  however,  a  limitation  of  this  rule  was  introduced,  and  it 
was  held  that  a  contract  to  sell  wheat,  part  of  which  was  to  be 
cleaned  and  part  threshed,  was  within  the  statute,  Brouson,  J,, 
observing  that,  "if  the  thing  exist  at  the  time  in  solido,  the  merp 
fact  that  something  remains  to  be  done  to  put  it  in  a  marketable 
condition  will  not  take  the  contract  out  of  the  operation  of  the 
statute,"  The  rule  *"  and  the  limitation  ^'  have  been  followed  in 
the  later  New  York  cases.  The  cases  are  discussed  and  recon 
oiled  in  Cooke  v.  Millard,'^^  in  which  it  was  held  that  a  contract  for 
the  sale  of  lumber  which  the  seller  was  to  dress  and  put  in  condi 
tion  to  fill  the  order  of  the  buyer  was  within  the  statute.  The 
rule  is  there  stated  that  an  agreement  for  the  sale  of  a  commodity 
not  in  existence,  but  which  the  seller  is  to  manufacture  or  put  in 
condition  to  be  delivered,  such  as  flour  from  wheat  not  yet  ground, 
or  nails  to  be  made  from  iron  belonging  to  the  manufacturer,  is 
not  a  contract  of  sale;  but  that,  when  the  chattel  is  in  existence, 
the  contract  should  be  deemed  to  be  one  of  sale,  even  though  it 
may  have  been  ordered  from  a  seller  who  is  to  do  some  work  upon 

21  Ante,  p.  38. 

2  2  18  Johns.  58. 

«3  8  Cow.  215. 

2*  23  Wend.  270. 

2B  Robertson  v.  Vaughn,  5  Sandf.  1;  Bronson  v.  Wiman,  10  Barb.  40G; 
Parker  v.  Schenck,  28  Barb.  38;  Parsons  v.  Loucks,  48  N.  Y.  17;  Warren 
Chemical  &  Manufacturing  Co.  v.  Holbrook,  118  N.  Y.  586,  23  N.  E.  908. 
See  Hinds  v.  Kellogg  (Com.  PI.  N.  Y.)  13  N.  Y.  Supp.  922. 

26  Smith  V.  New  York  Cent.  R.  Co.,  *43  N.  Y.  180;  Cooke  v.  Millard,  65 
N.  Y.  352;  Alfred  Shrimpton  &  Sons  v.  Dworsky,  2  Misc.  Rep.  123,  21  N.  Y. 
Supp.  461. 

2T  65  N.  Y.  352. 


42  FORMATION    OF   THK    CONTRACT.  [Ch.  2 

it  to  adapt  it  to  the  use  of  the  j)urchaser.  Dwight,  C,  who  deliv- 
ered the  oj)inion,  observed  in  regard  to  Lee  v.  Griirm  that,  if  the 
subject  were  opeu,  no  more  convenient  rule  than  that  of  Lee  v. 
Grillin,  which  is  at  once  so  philosophical  and  comprehensible, 
could  be  adopted,  but  that  it  was  too  late  to  adopt  it  in  full. 
Same — Iiulc  Elsexcliere  in  United  States. 

It  would  be  diflicult,  if  not  impossible,  to  classify  the  American 
cases  as  falling  within  the  English,  the  New  York,  or  the  Massa- 
chusetts rule.^®  The  later  rule  has,  however,  met  with  most  gen- 
eral ajiproval.^®  The  New  York  rule  has  been  followed  in  Mary- 
laud.^"  The  English  rule  seems  to  prevail  in  Minnesota,^ ^  and  has 
in  a  recent  case  been  expressly  adopted  in  Missouri.'* 
Oiattel  Intended  for  a  Fixture. 

Contracts  for  furnishing  an  article,  and  fixing  it  to  the  free- 
hold, are  to  be  distinguished  from   contracts  of  sale."     In   such 

2  8  In  rrescott  v.  Locke,  51  N.  H.  94,  it  was  held  that  a  contract  to  buy  what 
spokes  plaintiff  should  saw  at  his  mill  was  within  the  statute,  and  the  opin- 
ion cites  Lee  v.  Griffin,  1  Best.  &  S.  272,  30  Law  J.  Q.  B.  252;  but  the  court 
draws  a  distinction  like  that  at  one  time  suggested  in  England  (supra)  be- 
tween contracts  of  sale  and  those  in  which  the  labor  and  skill  of  the  work- 
man are  the  essence  of  the  contract.  See,  also,  Pitkin  v.  Noyes,  48  N.  H. 
294.  Cf.  Oilman  v.  Hill,  30  N.  H.  311.  A  contract  to  cut  all  the  trees  on 
defendant's  land,  and  to  deliver  the  logs  with  others  already  cut  at  plaintiff's 
mill,  is  within  the  statute.  Ellison  v.  Brigham,  38  Vt.  G4.  A  contract  to 
paint  a  portrait  is  not  within  the  statute.  Turner  v.  Mason,  65  Mich.  662, 
32  N.  W.  846. 

28  Hight  V.  Ripley,  19  Me.  137;  Abbott  v.  Gilchrist,  38  Me.  260;  Edwards 
V.  Grand  Trunk  Ry.,  48  Me.  379,  54  Me.  105;  Crockett  v.  Scribner,  G4  Me. 
447;  Finney  v.  Apgar,  31  N.  J.  Law,  271  (Cf.  Pawelski  v.  Hargreaves,  47 
N.  J.  Law,  334);  Bird  v.  Muhlinbrink,  1  Rich.  Law,  199;  Meincke  v.  Falk,  55 
Wis.  427,  13  N.  W.  545,  distinguishing  Hardell  v.  McClure,  1  Chand.  (Wis.) 
271,  2  Pin.  289,  in  which  the  modera  English  rule  was  approved;  Cason  v. 
Cheely,  6  Ga.  554;  O'Neil  v.  New  York  &  Silver  Peak  Min.  Co.,  3  Nov.  141; 
Orman  v.  Hager,  3  N.  M.  331,  9  Pac.  363;  Mighell  v.  Dougherty,  86  Iowa, 
480,  53  N.  W.  402.  See,  also,  Allen  v.  Jarvis,  20  Conn.  38;  Atwater  v. 
Hough,  29  Conn.  509. 

8  0  Eichelberger  v.  McCauley,  5  Har.  &  J.  213;   Rentch  v.  Long,  27  Md.  188. 

«i  Brown  v.  Sanborn,  21  Minn.  402. 

8  2  Pratt  V.  Miller,  109  Mo.  78,  18  S.  W.  965;  Burrell  v.  Highleyman,  83 
Mo.  App.  183.     Also  in  Wolfenden  v.  Wilson,  33  U.  C.  Q.  B.  442. 

88  Benj.  Sales,  §  108. 


Ch.   2]  WHAT   ARE    GOODS,   WARES,  AND    MERCHANDISE.  4S 

oases  the  intention  is  not  to  make  a  sale  of  movables,  but  to  make 
iinprovcinonts  on  the  real  property  of  which  the  article  furnished, 
upon  being  affixed,  becomes  a  part;  and  the  consideration  to  be 
paid  is,  not  for  a  transfer  of  chattels,  but  for  work  and  labor  done 
and  materials  furnished  in  adding  something  to  the  land.'* 

Similarly,  a  contract  to  make  improvements  upon  a  chattel  be- 
longing to  the  employer  is  a  contract  for  work,  labor,  and  ma- 
terials.'" 
Auction  Sales. 

Although  it  was  questioned  by  Lord  Mansfield  whether  the  stat- 
ute applied  to  sales  of  goods  at  auction,^ ^  it  is  universally  held  that 
it  applies  to  them  as  well  as  to  private  sales.'^ 

WHAT  ARE  GOODS,  WARES,  AND  MERCHANDISE. 

21.  "Goods,  wares,  and  merchandise"  comprehend: 

(a)  All  corporeal  movable  property. 

(b)  In   the   United   States,    generally,  (but   not   in 

England),    incorporeal     property,     such     as 
shares,  promissory  notes,  bank  bills,  etc. 

(c)  Fructus  naturales  and  fructus  industriales,  the 

ownership  w^hereof  is  to   pass  to  the   buyer 
after  severance  thereof  from  the  soil. 

(d)  Fructus  industriales  (perhaps)  also  w^hen  such 

ownership  is  to  pass  before  severance. 

22.  "Goods,  wares,  and  merchandise"  do  not  compre- 
hend: 

(a)  Fructus  naturales,  the    ownership   whereof  i& 

to  pass  before  severance  [and  from  the  fur- 
si  Tripp  V.  Armitage,  4  Mees.  &  W.  687;   Clark  v.  Bulmer,  11  Mees,  &  W. 
243. 
86  Anglo-Egyptian  Nav.  Co.  v.  Rennie,  L.  R.  10  C.  P.  271. 

86  Simon  v.  Motivos,  3  Bun-ows,  1921,  1  Wm.  Bl.  599. 

87  Hinde  v.  Whitebouse,  7  East,  558,  per  Lord  EUenborough;  Kenworthy 
V.  Schofield,  2  Bam.  &  C.  945;  Davis  v.  Rowell,  2  Pick.  64;  Morton  v.  Dean,. 
13  Mete.  (Mass.)  385;  Pike  v.  Balch.  38  Me.  302;  Johnson  v.  Buck,  35  N.  J. 
Law,  338;  Davis  v.  Robertson,  1  Mill,  Const  71;  Sanderlin  v.  Trustees,  R. 
M.  Charlt  (Ga.)  551. 


44  FORMATION    OF   THE   CONTKACT.  [Cll.   2 

ther  growth  whereof  the  buyer  is  to  derive 

benefit].*' 
(b)  Tenants'  fixtures  sold  w^hile  unsevered. 

Incorporeal  Property — Choscs  in  Action. 

To  Enj;land  the  term  "^oods,  wares,  and  merchandise"  has  been 
limited  to  corporeal  movable  property,  and  is  held  not  to  include 
shares,  stock,  documents  of  title,  choses  in  action,  and  other  in 
corporeal  rights  and  property.^*      In  the  United  States,  however, 

1  lie- term  is  as  a  rule  held  to  include  incorporeal  property,  such  as 
stock,*"  bills  and  notes,"  bank  bills,"  and  accounts."  In  some 
states  a  broader  rule  is  required  by  the  language  of  the  statute, 
as  in  New  York,  California,  Wisconsin,  and  Minnesota,  where  the 

38  If  Marshall  v.  Green.  1  C.  P.  Div.  35.  and  the  similar  decisions  in  this 
country,  be  good  law,  the  words  within  the  brackets  must  stand.  See  post, 
p.  40. 

38  Humble  V.  Mitchell,  11  Adol.  &  E.  205;  Knight  v.  Barber.  16  Mees.  & 
W.  t;6,  16  L.  J.  Exch.  18;  Bradley  v.  Holdsworth,  3  Mees.  &  W.  422;  Dun- 
cuft  V.  Albrecht,  12  Sim.  189;  Colonial  Bank  v.  Whinney,  30  Ch.  Div.  261, 
286;  Benj.  Sales,  §  111.    See  Evans  v.  Davies  [1803]  2  Ch.  Div.  216. 

*o  Tisdale  v.  Harris,  20  Pick.  9;  Boardman  v.  Cutter,  128  Mass.  388;  North 
V.   Forest,  15  Conn.  400:    Pray  v.  Mitchell,  60  Me.  430;    Fine  v.   Hornsby, 

2  Mo.  App.  61;  Bernhardt  v.  Walls,  29  Mo.  App.  206.  See  Somerby  v.  Buntin. 
118  Mass.  279;  Meehan  v.  Sharp,  151  Mass.  504.  24  N.  E.  907;  Green  v. 
Brookins,  23  Mich.  48,  54;  Gadsden  v.  Lance,  1  McMul.  Eq.  87.  "The  words 
of  the  statute  have  never  yet  been  extended  by  any  court  beyond  securities 
which  are  subjects  of  common  sale  and  barter,  and  which  have  a  visible 
and  palpable  form."  Somerby  v.  Buntin,  supra,  per  Gray,  C.  J.,  and  Meolmii 
V.  Sharp,  supra.  But  Webb  v.  Baltimore  &  E.  S.  K.  Co.,  77  Md.  92,  26  Atl. 
113,  follows  the  English  rule,  notwithstanding  a  dictum  to  the  contrary  in 
Colvln  V.  Williams,  3  Har.  &  J.  38. 

*i  Baldwin  v.  Williams,  3  Mete.  (Mass.)  367;  Gooch  v.  Holmes,  41  Me.  523; 
Pray  v.  Mitchell,  60  Me.  430,  435;  Hudson  v.  Weir,  29  Ala.  294;  Greenwood 
v.  Law,  55  N.  J.  Law,  168,  26  Atl.  134  (bond  and  mortgage).  Contra,  Whit- 
temore  v.  Gibbs,  24  N.  H.  484;  Beers  v.  Crowell,  Dud.  (Ga.)  28  (United  States 
treasury  checks  on  Bank  of  U.  S.);   Vawter  v.  GrifBu,  40  Ind.  600. 

42  Riggs  V.  Magruder,  2  Cranch,  C.  C.  143,  Fed.  Cas.  No.  11,828;  Gooch  v. 
Holmes,  41  Me.  523.  Gold  coin,  when  the  subject  of  a  contract  of  sale,  Is 
within  the  statute.     Peabody  v.  Speyers,  56  N.  Y.  230. 

*8  Walker  v.  Supple,  54  Ga.  179. 


Ch.   21  WHAT    ARE    GOODS,  WARES,   AND    MERCHANDISE.  45' 

provision   expressly   includes  choses   in  action,**   and   in   Florida, 
where  it  uses  the  term  "personal  property."  *' 
Interest  in  Land — Fourth  Section  of  the  Statute. 

The  fourth  section  of  the  statute  of  frauds,  which  has  been  sub- 
stantially enacted  in  most  states  of  this  country,  provides  that 
"no  action  shall  be  brought  ♦  »  •  upon  any  contract  or  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
them,  ♦  *  *  unless  the  agreement  upon  which  such  action  shall 
be  brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing 
and  signed  by  the  party  to  be  charged  therewith,  or  some  other  per- 
son thereunto  by  him  lawfully  authorized."  When  a  contract  of 
sale  is  made,  the  subject-matter  of  which  is  something  attached 
to  the  soil,  the  question  frequently  ai'ises  whether  such  sale  is 
of  an  interest  in  land,  and  hence  whether  it  is  within  the  fourth  sec- 
tion, or  whether  it  is  a  sale  of  goods,  wares,  and  merchandise, 
and  hence  within  the  seventeenth  section,  or  whether  it  is  neither. 
The  question  which  section  governs  may  be  of  vital  importance, 
because  the  fourth  section  requires  a  written  memorandum  or  note 
under  all  circumstances  and  whatever  the  amount,  while  under  the 
seventeenth  section  the  necessity  of  a  writing  does  not  exist  if  the 
amount  is  under  £10,  or  if  the  provisions  in  respect  of  performance 
or  payment  have  been  satisfied. 
Fructus  Naturales  and  Fmctus  Lidustriales. 

Inasmuch  as  "goods,  wares,  and  merchandise"  comprehends 
all  movable  corporeal  property,  an  executory  contract  for  the  sale 
of  a  thing  attached  to  the  soil,  for  example,  trees,  if  the  thing  is  to 
be  severed  from  the  soil  before  the  sale,  is  within  the  seventeenth 
section,  and  is  not  within  the  fourth  section,  of  the  statute;  for, 
though  the  subject  of  sale  be  an  interest  in  land  when  the  contract 
is  made,  it  has,  by  severance  from  the  soil,  become  "goods,  wares, 
and  merchandises"  when  the  sale  is  executed.*^     But,  if  the  con- 

44Artcher  v.  Zeh,  5  Hill,  200;  Peabody  v.  Speyers,  56  N.  Y.  230;  Allen  v. 
Aguirre,  7  N.  Y.  543;  Mayer  v.  Child,  47  Cal.  142;  Spear  v.  Bach,  82  Wis. 
192,  52  N.  W.  97. 

45  Southern  Life  Ins.  &  Trust  Co.  v.  Cole,  4  Fla.  359. 

*6  Smith  V.  Surman,  9  Barn.  &  C.  561;  Washbourn  v.  Burrows,  1  Exch. 
107,  per  curiam;  Watts  v.  Friend,  10  Barn.  &  C.  44G;  Parker  v.  Staniland,  11 
East,  362;  Sainsbury  v.  Matthews,  4  Mees.  &  W.  343;   Whitmarsh  v.  Walker, 


46  FORMATION    OF   THE    CONTRACT.  [Ch.  2 

tract  contemplates  a  present  sale,  a  dififerent  question  arises,  which 
is  to  be  determined  in  the  case  of  growing  crops  upon  a  somewhat 
artificial  distinction. 

A  distinction  exists  between  what  are  known  as  "fructus  natu- 
rales,"  which  are  the  natural  product  of  the  soil,  as  trees  and  grass, 
and  "fructus  indnstriales,"  which  are  the  product  of  annual  labor, 
as  wheat  or  potatoes.  Fructus  naturalcs  are  an  interest  in  land, 
but  fructus  indnstriales  are  chattels,  and  not  an  interest  in  land. 
From  the  character  of  fructus  naturales  as  an  interest  in  land, 
it  follows  that  an  agreement  vesting  a  present  interest  in  them  be- 
fore severance  is  within  the  fourth  section.  Such,  at  least,  is  the 
prevailing  rule  in  this  country,*^  and  was  supposed  to  be  the  law 
under  all  circumstances  in  England  *^  until  the  case  of  Marshall 
V.  Green, *^  in  1875,  in  which  it  was  held  that  a  sale  of  standing 
timber,  to  be  cut  by  the  purchaser  as  soon  as  possible,  was  within 
the  seventeenth,  and  not  within  the  fourth,  section.  It  is  said  by 
the  English  editors  of  Benjamin  '°  that  this  decision  is  open  to 
criticism,  and  must  be  supported  either  on  the  ground  that  title 
was  not  to  pass  until  severance,  which  would  bring  it  within  the 

1  Mete.  (Mass.)  313;  Claflin  v.  Carpenter,  4  Mete.  (Mass.)  580;  Nettleton  v. 
Sikes,  8  Mete.  (Mass.)  34;  Drake  v.  Wells,  11  Allen,  141;  White  v.  Foster, 
102  Mass.  375,  378;  Fletcher  v.  Livingston,  153  Mass.  388,  390,  26  N.  E.  1001; 
Banton  v.  Shorey,  77  Me.  48,  51;  Kilmore  v.  Hewlett,  48  N.  Y.  569;  Boyce 
V.  Washburn,  4  Hun,  792;  Upson  v.  Holmes,  51  Conn.  500.  See,  also,  Slo- 
cum  V.  Seymour.  36  N.  J.  Law,  138,  per  Bedle,  J.;  Green  v.  North  Carolina 
R.  Co.,  73  N.  C.  524;  Owens  v.  Lewis,  46  Ind.  488;  Cool  v.  Peters  Box  & 
Lumber  Co.,  87  Ind.  531;  Brown  v.  Sanborn,  21  Minn.  402;  Benj.  Sales,  §§ 
118,  119;   Blackb.  Sales,  p.  5. 

*^  White  v.  Foster,  102  Mass.  375;  Putney  v.  Day,  6  N.  H.  430;  Olmstead 
V.  Niles,  7  N.  H.  522;  KIngsley  v.  Holbrook,  45  N.  H.  313;  Howe  v.  Batchel- 
der,  49  N.  H.  204;  Green  v.  Armstrong,  1  Denio,  550;  Thomson  v.  Poor, 
10  N.  Y.  Supp.  597,  57  Hun,  288;  Id.,  22  N.  Y.  Supp.  570,  67  Hun,  653;  Slo- 
cum  v.  Seymour,  36  N.  J.  Law,  138;  Harrell  v.  Miller,  35  Miss.  700;  Owens 
V.  Lewis,  46  Ind.  489;  Daniels  v.  Bailey,  43  Wis.  566;  Lillle  v.  Dunbar,  62 
Wis.  198,  22  N.  W.  467;   Hirth  v.  Graham,  50  Ohio  St.  57,  33  N.  E.  90. 

*8  Rodwell  V.  Phillips,  9  Mees.  &  W.  501;  Crosby  v.  Wadsworth,  6  East, 
602;  Teal  v.  Auty,  2  Brod.  &  B.  99  (trees);  Seorell  v.  Boxall,  1  Younge  &  J. 
396:   Anonymous,  1  Ld.  Raym.  182,  eontra. 

*»  1  C.  P.  Div.  35. 

»o  Benj.  Sales,  §  126.     See,  also,  Kerr,  Dig.  Law  Saies,  p.  5  (s). 


Ch.  2]  WHAT   ARK    GOODS,  WARES,  AND   MERCHANDISE,  47 

principle  governing  executory  contracts  of  sale  above  stated,  or  that 
it  must  be  taJien  to  have  introduced  the  limitation  that,  even  when 
the  property  in  fructus  naturales  passes  before  severance,  if  the 
intention  is  that  the  buyer  is  to  derive  no  benefit  from  their  further 
growth,  the  sale  is  within  the  seventeenth,  and  not  within  the 
fourth,  section.  Apparently  the  judges  who  decided  Marshall  v. 
Green  took  the  latter  view  of  the  case,  and  the  same  has  been  taken 
by  some  courts  in  the  United  States.''^  In  a  later  English  case,"^ 
Chitty,  J.,  refused  to  apply  the  limitation  to  the  sale  of  building 
materials  in  a  building  to  be  removed  by  the  buyer,  and  his  criti- 
cisms apply  equally  to  Marshall  v.  Green  and  to  the  American  cases 
referred  to.  "It  is  sold,''  he  says,  "as  building  materials,  and,  if  the 
intention  of  the  parties  prevailed,  it  might  mean  that  it  is  sold  as 
a  chattel,  but  the  point  still  is  that  it  is  not  a  chattel  at  the  time  of 
the  sale,  and  the  statute  of  frauds,  so  far  as  I  can  see,  does  not 
enable  parties  to  say:  *We  will  agree  to  treat  this  thing  as  a 
chattel,  when  in  point  of  law  it  is  a  hereditament.'"  In  Massa- 
chusetts, where  the  above  limitation  of  the  rule  is  not  recognized, 
the  courts  construe  contracts  for  the  sale  of  trees  and  other  fructus 
naturales,  even  if  the  trees  are  to  be  cut  by  the  purchaser,  as  exec- 
utory contracts  in  which  the  title  is  not  to  pass  until  severance 
and  conversion  into  personalty  and  by  which  the  purchaser  has 
until  severance  only  a  revocable  license  to  enter  and  remove  the 
trees."** 

Bi  Sterling  v.  Baldwin,  42  Vt.  306;  McClintock's  Appeal,  71  Pa.  St.  365; 
Cain  V.  McGuire,  3  B.  Mod.  340;  Byassee  v.  Reese,  4  Mete.  (Ky.)  372.  See, 
also,  Bostwick  v.  Leach,  3  Day,  476;  Purner  v.  Piercy,  40  Md.  212;  Smith 
V.  Bryan,  5  Md.  141;  Foster  v.  Mabe,  4  Ala.  402;  Scoggin  v.  Slater,  22  Ala. 
687.  If  the  timber  is  to  be  taken  off  by  the  purchaser  without  specification 
as  to  time,  the  contract  is  within  the  fourth  section.  Huff  v.  McCauley,  53 
Pa.  St.  206;  Pattison's  Appeal,  61  Pa.  St.  294;  Miller  v.  Stevens,  100  Mass. 
518. 

B»  Lavery  y.  Pursell,  39  Ch.  Div.  508,  57  L.  J.  Ch.  Div.  570. 

B8  White  V.  Foster.  102  Mass.  375,  379,  and  Massachusetts  cases  cited  in 
note  supra.  Usher,  Sales,  §  96.  The  Massachusetts  cases  construe  in  this 
way  contracts  which  elsewhere  would  perhaps  be  construed  as  intended  to 
pass  title  before  severance,  and  as  hence  within  the  fourth  section,  but  the 
peculiarity  of  the  Massachusetts  cases  concerns,  at  most,  the  construction  of 
the  contract,  and  not  the  application  of  the  statute.     If  the  contract  grants 


48  FORMATION    OP    THE    CONTRACT.  [Ch.    2 

From  the  character  of  fruetus  industriales  as  chattels,  on  the 
other  hand,  it  follows  that  a  sale  of  them  is  not  within  the  fourth 
section.'*  But,  though  they  are  chattels,**'  it  is  an  open  question 
whether  they  are  "goods,  wares,  and  merchandises,"  and  conse- 
quently within  the  seventeenth  section.'*  Whether  fruetus  indus- 
triales include  a  crop  which  is  neither  annual  nor  permanent,  but 
which  affords  a  crop  either  the  second  or  third  year,  or  a  succession 
of  crops  for  several  years,  is  a  question  on  which  there  is  little  au- 
thority; but  it  would  seem  that  the  crop  of  the  first  year  would  be 
fruetus  industriales,  and  that  the  crops  of  subsequent  years  would 
be  fruetus  naturales,  unless,  like  hops,  they  require  cultivation  for 
each  successive  crop,  in  which  case  they  would  be  fruetus  indus- 
triales till  exhausted." 
Removable  Fixtures. 

Removable  fixtures  are  neither  within  the  fourth  section  "  nor 
the  seventeenth  section;'®  though  an  executory  contract  for  the 

an  estate  in  the  trees  while  growing,  the  fourth  section  applies.  White  v. 
Foster,  supra. 

54  Evans  v.  Roberts,  5  Barn.  &  C.  836;  Jones  v.  Flint,  10  Atlol.  &  E.  753; 
Warwick  v.  Bruce,  2  Maule  &  S.  205;  Dunne  v.  Ferguson,  Hayes,  540;  Back- 
enstoss  v.  Stahler,  33  Pa.  St.  251,  255;  Marshall  v.  Ferguson,  23  Cal.  60; 
Davis  V.  McFarlane,  37  Cal.  634;  Vulicevich  v.  Skinner,  77  Cal.  239,  19  Pac. 
424;   Graff  v.  Fitch,  58  111.  373. 

66  Whipple  V.  Foot,  2  Johns.  418;  Newcomb  v.  Ramer,  Id.  421,  note  a; 
Brittaiu  v.  McKay,  1  Ired.  265;  Penhallow  v.  Dwight,  7  Mass.  34;  West- 
brook  V.  Eager,  16  X.  J.  Law,  81;  Brlcker  v.  Hughes,  4  Ind.  140;  Bull  v. 
Griswold.  19  111.  631. 

68  For  dicta  in  the  afiirmative:  Evans  v.  Roberts,  5  Barn.  «&  C.  836,  per 
Bayley,  J.,  and  Liltledale,  J.;  Marshall  v.  Green,  1  C.  P.  Div.  35,  42,  per 
Brett,  J.;  Dunne  v.  Ferguson,  Hayes,  540,  per  .Toy,  C.  B. ;  Marshall  v.  Fer- 
guson, 23  Cal.  66,  per  Crocker,  J.;  Sherry  v.  Picken,  10  Ind.  375,  per  Perkins, 
J.  See,  also,  Ross  v.  Welch,  11  Gray,  235.  Lord  Blackburn  says  that  the 
proposition  is  "exceedingly  questionable."  Blnckb.  Sales  (2d  Ed.)  p.  13; 
Benj.  Sales,  §  127;   Laugd.  Cas.  Sales,  1031. 

07  Benj.  Sales.  §§  128,  129.  citing  Graves  v.  Weld.  5  Barn.  &  Add.  105. 
"A  growing  crop  of  peaches  or  other  fruit,  requiring  periodical  expense,  in- 
dustry, and  attention,  ♦  *  ♦  may  be  well  classed  as  fruetus  industriales." 
Purner  v.  Plercy,  40  Md.  212.  223,  per  Stewart,  J. 

68  Heyshara  v.  Dettre,  SO  Pa.  St.  506;    Powell  v.  McAshan,  28  Mo.  70.     "In 

68  Hallen  v.  Runder,  1  Cromp.,  M.  &  R.  266;  Lee  T.  Gaskell,  1  Q.  B.  Div. 
700,  45  Law  J.  Q.  B.  540.     See  Benj.  Sales,  §  127. 


Ch.   2]        CONTRACT    FOB    THE    PRICE    OR   VALUE   OF   £10   ($50).  49 

sale  of  fixtures  to  be  severed  before  the  title  passed  would  doubt- 
less be  held  an  executory  sale  of  goods,  within  the  principle  pre- 
viously stated."* 


WHAT  IS  A  CONTBACT  FOR  THE   PRICE    OR  VALUE   OP 

£10  ($50). 

23.  The  statute  of  frauds  includes: 

(a)  An  entire  contract  for  the  sale  of  goods  and  for 

other  objects  not  -within  the  statute,  -wrhere 
the  value  of  the  goods  exceeds  the  statutory 
amount. 

(b)  An   entire    contract   for   the    sale    of    different 

goods,  the  joint  value  vsrhereof  exceeds  the 
statutory  amount. 

(c)  A  contract  for  the  sale  of  goods  of  unascer- 

tained value  at  the  date  of  the  contract,  the 
value  vsrhereof  is  afterwards  ascertained  to 
exceed  the  statutory  amount." 

The  rule  that  an  entire  contract  for  the  sale  of  goods,  and  for 
other  matters  not  within  the  statute,  is  invalid,  if  the  value  of  the 
goods  exceeds  the  statutory  amount,  was  established  by  Harman 
V.  Reeve,® ^  in  which  the  plaintiff  agreed  to  sell  to  the  defendant 
a  mare  and  foal,  which  were  above  the  value  of  £10,  and  also  to 
agist  them  and  another  mare  and  foal  for  £30.  The  statute  was 
held  to  apply,  but  the  court  said  that  the  plaintiff  might  recover 
the  value  of  the  agistment.  In  the  Massachusetts  case  of  Irvine  v. 
Stone,® ^  however,  in  which  a  contract  for  the  purchase  of  a  cargo  of 

the  case  of  fixtures  which  are  not  incorporated  with,  but  merely  annexed  to, 
the  freehold,  the  rule  is  well  settled  that  the  statute  does  not  apply."  Strong 
V.  Doyle,  110  Mass.  92,  per  Colt,  J.    But  see  Conner  v.  Coffin,  22  N.  H.  538. 

80  Kerr,  Dig.  Sales,  p.  6  (t). 

«i  See  Kerr,  Dig.  Sales,  §  7. 

62  18  C.  B.  587,  25  Law  J.  C.  P.  257.  See,  also,  Astey  v.  Emery,  4  Maule  &. 
S.  262;   Cobbold  v.  Caston,  1  Bing.  399,  8  Moore,  45G. 

6  3  6  Cush.  508.     See,  also,  McMullen  v,  Riley,  6  Gray,  500. 

SALES — 4  ■ 


60  FORMATION    OF   THE    CONTRACT.  [Ch.  2 

coal  at  Philadelphia  at  an  agreed  price  per  ton,  and  for  the  pay- 
ment of  the  freight,  was  held  within  the  statute,  the  contract  was 
held  111  so  to  be  unenforceable  as  to  the  freight 

The  leading  case  upon  the  rule  that  an  entire  contract  for  the  sale 
of  various  articles,  neither  of  which  is  of  the  statutory  value,  but 
whose  value  in  gross  exceeds  it,  is  within  the  statute,  is  Baldey  v. 
Pniker.®*  In  this  case  the  defendant  bought  at  the  plaintiff's  shop 
a  number  of  articles,  each  at  a  separate  price  less  than  £10,  the 
whole  amount  being  £70,  and  the  case  was  decided  upon  the  ground 
that  the  transaction  constituted  one  entire  contract.  The  cases  in 
this  country  are  in  harmony  with  Baldey  v.  Parker,"  and  they  even 
extend  the  rule  to  an  auction,  where  the  articles  are  struck  off 
separately  at  distinct  prices,^®  though  in  England  in  such  a  case  a 
distinct  contract  arises  for  each  lof 

The  rule  that  the  statute  applies,  although  it  be  not  ascertained 
till  after  the  date  of  the  contract  that  the  value  exceeds  the  stat- 
utory amount,  was  involved  in  Watts  v.  Friend,®®  where  the  sale 
was  of  a  future  crop  of  turnip  seed  at  a  guinea  a  bushel,  and  the 
value  of  the  crop  when  produced  exceeded  £10.  The  point  was  not 
argued  or  mentioned  by  the  court,  but  the  decision  has  been  fol- 
lowed in  the  United  States.'* 

e*  2  Barn.  &  C.  37. 

85  Gilman  v.  Hill,  36  N.  H.  318;  Gault  v.  Brown.  48  N,  H.  183;  Allard  v. 
Greasert.  61  N.  Y.  1. 

8  8  Mills  V.  Hunt.  17  Wend.  333,  20  Wend.  431;  Coffman  v.  Hampton,  2 
Watts  &  S.  377;  Tompkins  v.  Haas,  2  Pa.  St.  74;  Kerr  v.  Shrader,  1  Wkly. 
Notes  Gas.  33;  Jenness  v.  Wendell,  51  N.  H.  63.  But  separate  sales  of  real 
estate  are  distinct  contracts.  Van  Eps  v.  Schenectady,  12  Johns.  436;  Rob- 
inson V.  Green,  3  Mete.  (Mass.)  159;  Wells  v.  Day,  124  Mass.  38. 

67  Emmerson  v.  Heelis,  2  Taunt.  38.  See,  also,  Rugg  v.  Mlnett,  11  East, 
218,  per  Le  Blanc,  J.;  Roots  v.  Dormer,  4  Barn.  &  Adol.  77;  Couston  v.  Chap- 
man, L.  R.  2  H.  L.  Sc.  250. 

6  8  10  Barn.  &  C.  446. 

6  9  Carpenter  v.  Galloway,  73  Ind.  418;  Bowman  v.  Ck>nn,  8  Ind.  68;  Brown 
T.  Sanborn,  21  Minn.  402. 


Ch.  23  ACCEPTANCE   AND    KECEIPT.  61 


ACCEPTANCE  AND  RECEIPT. 

24.  In  order  to  satisfy  the  exception,  in  case  "the  buyer 
shall  accept  part  of  the  goods  so  sold,  and  actually  receive 
the  same,"  there  must  be  both  acceptance  and  actual  re- 
ceipt. 

25.  Acceptance  may  precede,  be  contemporaneous  -with, 
or  subsequent  to,  receipt,  and  both  may  be  subsequent  to 
the  contract  of  sale. 

26.  A  sample  constitutes  a  "part  of  the  goods,"  if  it  be 
considered  by  the  parties  as  part  of  the  bulk  sold. 

Having  considered  the  meaning  of  the  words,  "no  contract  for  the 
sale  of  goods,  wares,  or  merchandise  for  the  price  of  £10  or  up- 
wards," it  remains  to  consider  under  what  circumstances  such  con- 
tracts "shall  be  allowed  to  be  good."  The  section  provides  that 
they  shall  not  be  allowed  to  be  good,  "except  (1)  the  buyer  shall 
accept  part  of  the  goods  so  sold,  and  actually  receive  the  same;  (2) 
or  give  something  in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment; (3)  or  that  some  note  or  memorandum  in  writing  of  the  said 
bargain  be  made  and  signed  by  the  parties  to  be  charged  by  such 
contract,  or  their  agents  thereunto  lawfully  authorized."  ■" 
Acceptance  and  Receipt. 

Referring  to  the  first  exception,  Lord  Blackburn  says:  ^^  "If  we 
seek  for  the  meaning  of  the  enactment,  judging  merely  from  its 
words,  and  without  reference  to  decisions,  it  seems  that  this  pro- 
vision is  not  complied  with,  unless  the  two  things  concur:  The 
buyer  must  accept,  and  he  must  actually  receive  part  of  the  goods, 
and  the  contract  will  not  be  good  unless  he  does  both;  and  this  is 
to  be  borne  in  mind,  for,  as  there  may  be  an  actual  receipt  without 
an  acceptance,  so  there  may  be  an  acceptance  without  any  receipt. 
In  the  absence  of  authority,  and  judging  merely  from  the  ordinary 
meaning  of  language,  one  would  say  that  an  acceptance  of  part  of 
the  goods  is  an  assent  by  the  buyer,  meant  to  be  final,  that  this 
part  of  the  goods  is  to  be  taken  by  him  as  his  property  under  the 

TO  Benj.  Sales,  §  138  et  seq.  ii  Blackb.  Sales,  16. 


62  FORMATION    OF   THE   CONTRACT.  [Cli.   2 

contract,  and  as  so  far  satisfying  the  contract  So  long  aa  the 
buver  can,  without  self-contradiction,  declare  that  the  goods  are  not 
to  be  taken  in  fulfillment  of  the  contract,  he  has  not  accepted  them. 
And  it  is  immaterial  whether  his  refusal  to  take  the  goods  be  reason- 
able or  not.  If  he  refuses  the  goods,  assigning  grounds  false  or 
frivolous,  or  assigning  no  reasons  at  all,  it  is  still  clear  that  he 
does  not  accept  the  goods,  and  the  question  is  not  whether  he 
ought  to  accept,  but  whether  he  has  accepted,  them.  The  question 
of  acceptance  or  not  is  a  question  as  to  what  was  the  intention  of 
the  buyer,  as  signified  by  his  outward  acts.  The  receipt  of  part 
of  the  goods  is  the  taking  possession  of  them.  When  the  seller 
gives  to  the  buyer  the  actual  control  of  the  goods,  and  the  buyer 
accepts  such  control,  he  has  actually  received  them.  Such  a  re- 
ceipt is  often  evidence  of  acceptance,  but  it  is  not  the  same  thing; 
indeed,  the  receipt  by  the  buyer  may  be,  and  often  is,  for  the  ex- 
press purpose  of  seeing  whether  he  will  accept  or  not.  If  goods  of 
a  particular  description  are  ordered  to  be  sent  by  a  carrier,  the 
buyer  must  in  every  case  receive  the  package  to  see  whether  it 
answers  his  order  or  not.  It  may  even  be  reasonable  to  try  part 
of  the  goods  by  using  them;  but,  though  this  is  a  very  actual  receipt, 
it  is  no  acceptance,  so  long  as  the  buyer  can  consistently  objet^t  to 
the  goods  as  not  answering  his  order." 

It  is  to  be  observed  that  the  two  questions  of  acceptance  and 
receipt  are  frequently  confused  in  the  cases,  and  it  has  sometimes 
been  questioned  whether  any  distinction  existed  between  them.^^ 
It  is  clearly  established,  however,  that  they  are  distinct,  and  that 
both  acceptance  and  receipt  are  essential.^ ^  Acceptance  may  pre- 
cede receipt,^*  or  receipt  may  precede  acceptance,"*  and  both  may 
be  subsequent  to  the  contract  of  sale.''*     Their  effect  is  to  prove 

T2  Castle  V.  Sworder,  6  Hurl.  &  N.  832,  30  Law  J.  Exch.  310,  per  Crompton, 
J.,  and  Cockburn,  C.  J. 

73  Smith  V.  Hudson,  6  Best  &  S.  431,  34  Law  J.  Q.  B.  145;  Cusack  v.  Robin- 
son, 1  Best  &  S.  299,  30  Law  J.  Q.  B.  201;  Bill  v.  Bament,  9  Mees.  &  W.  3(J; 
Baldey  v.  Parker,  2  Barn.  &  C.  37;  Saunders  v.  Topp,  4  Exch.  390;  Caulkins 
V.  Hellman.  47  N.  Y.  449;  Cooke  v.  Millard.  65  N.  Y.  352.  367;  Maxwell  v. 
Brown,  39  Me.  98. 

7  4  Post,  p.  54. 

7  6  Post,  p.  55. 

76  Gault  V.  Brown,  48  N.  H.  183,  188;  McKnight  v.  Dunlap,  5  N.  Y.  537; 
Marsh  v.  Hyde,  3  Gray,  331;  Bush  v.   Holmes,  53  Ale.  417;  Field  v.  Runk, 


Ch.  2]  ACCEPTANCE   AND    RECEIPT.  53 

that  there  was  a  contract,  the  terms  of  which  may  then  be  proved 
by  parol. ^'^ 

Acceptance  and  Receipt  of  Part — Sample. 

As  the  statute  requires  an  acceptance  and  receipt  simply  of  a  part, 
it  is  immaterial  how  small  such  part  is.''*  Thus  acceptance  and  re- 
ceipt of  a  sample  is  sufficient,  provided  it  be  considered  by  the  par- 
ties as  part  of  the  bulk  sold.^^  It  is  not  sufficient  if  the  sample  be 
not  so  considered.*"  So,  also,  acceptance  and  receipt  of  a  part  is 
sufiScient,  though  the  rest  of  the  goods  are  still  unmade,*^  or  though 
the  contract  embraces  different  kinds  of  goods,  only  one  of  which  is 
accepted  and  received.** 

SAME— ACCEFTANCE. 

27.  Acceptance  is  an  assent  by  the  buyer  that  the  goods 
are  to  be  taken  by  him  under  and  in  performance  of  the 
contract  of  sale.  Whether  the  buyer  has  accepted  is  a 
question  of  his  intention,  as  evidenced  by  his  words  and 
acts.  In  England  (but  not  in  the  United  States)  any  deal- 
ing with  the  goods  which  recognizes  a  pre-existing  con- 
tract of  sale  constitutes  an  acceptance. 

28.  If  the  contract  be  for  the  sale  of  specific  goods,  the 
acceptance  takes  place  w^hen  the  contract  is  entered  into, 

22  N.  J.  Law,  525,  530;  McCarthy  v.  Nash,  14  Minn.  127  (Gil.  95);  Ricky  v. 
Tenbroeck,  63  Mo.  563.  Acceptance  can  have  no  effect  after  the  seller  has 
disaffirmed.  Taylor  v.  Wakefield,  6  El.  &  Bl.  765.  See  Washington  Ice  Co. 
V.  Webster,  62  Me.  341,  361;  Brand  v.  Focht,  *42  N.  Y.  409. 

7  7  Tonikinson  v.  Staight,  25  Law  J.  C.  P.  85,  17  C.  B.  697;  Garfield  v. 
Paris,    96   U.    S.   557.    5G6. 

7  8  Garfield  v.  Paris,  96  U.  S.  557  (labels  deliverable  under  a  contract  for 
liquors  as  part  of  the  goods  sold);  Damon  v.  Osborn,  1  Pick.  476;  Farmer  v. 
Gray,  16  Neb.  401,  20  N.  W.  276. 

7  9  Hinde  v.  Whitehouse,  7  East,  558;  Talver  v.  West,  Holt,  178;  Klinitz  v. 
Surry,  5  Esp.  267;  Gardner  v.  Grout,  2  C.  B.  (N.  S.)  340;  Brock  v.  Knower, 
37  Hun,  609. 

80  Cooper  v.  Elston,  7  Term  R.  14;  Simonds  v.  Fisher,  cited  in  Gardner 
▼.  Grout,  2  C.  B.  (N.  S.)  340;  Moore  v.  Love,  57  Miss.  765.  See  Carver  v. 
Lane,  4  E,  D.  Smith,  168. 

81  Scott  V.  Eastern  Counties  Ry.  Co.,  12  Mees.  &  W.  33. 
•a  Elliott  V.  Thomas.  3  Mees.  &  W.  170. 


54  FORMATION    OF   THK   CONTRACT.  [Ch.   2 

and  is  proved  by  the   same   evidence   ■which  proves   the 
contract. 

29.  CONSTRUCTIVE  ACCEPTANCE— If  the  goods  have 
been  received  by  the  buyer,  any  dealing  -with  them  by 
him  as  owner  is  evidence  of  acceptance. 

Lord  Blackburn  adds  at  the  close  of  the  passage  quoted  on  a 
preceding  page  that  "on  the  whole  the  cases  are  pretty  consistent 
with  these  suggestions  and  with  each  other,  as  to  what  forms  an 
acceptance  within  the  statute,  though  not  as  to  the  strength  of  the 
proof  required  to  establish  it"  *^  The  American  cases  also  are 
pretty  consistent  with  this  statement  of  the  law,  but  in  England, 
as  will  be  seen,  an  artificial  construction  has  since  the  passage  was 
written  been  put  upon  "acceptance,"  which  is  quite  inconsistent 
with  the  views  there  expressed.  The  nature  of  an  acceptance  can 
best  be  understood  by  a  consideration  of  the  circumstances  under 
which  it  is  held  to  take  place. 

If  the  contract  of  sale  is  for  specified  goods,  an  acceptance  nec- 
essarily takes  place  when  the  contract  is  entered  into.**  Thus  in 
Cusack  V.  Robinson, ^°  where  the  buyer  was  shown  a  lot  of  15G 
firkins  of  butter  and  agreed  to  buy  the  lot,  and  the  goods  were  for- 
warded to  him,  it  was  held  that  there  was  sufficient  evidence  to 
justify  the  jury  in  finding  an  acceptance.  Blackburn,  J.,  said: 
"There  was  sufficient  evidence  that  the  defendant  had  at  Liverpool 
selected  these  specific  150  firkins  of  butter  as  those  which  he  then 
agreed  to  take  as  his  property  as  the  goods  sold,  and  that  he  di- 
rected those  specific  goods  to  be  sent  to  London.  This  was  cer- 
tainly evidence  of  an  acceptance."  In  such  cases  the  acceptance 
of  course  precedes  the  receipt     If  the  goods  are  ready  for  deliv- 

88  Blackb.  Sales.  17. 

84  Cusack  V.  Robinson,  1  Best  &  S.  299,  30  Law  J.  Q.  B.  261;  Bog  Lead 
Min.  Co.  V.  Montague,  10  C.  B.  (N.  S.)  481,  489;  Cross  v.  O'Dounell,  44  N. 
Y.  661;  United  States  Reflector  Co.  v.  Rush  ton,  7  Daly,  410;  Vietor  v.  Stroock 
(City  CL  N.  Y.)  3  N.  Y.  Supp.  801;  Id.  (Com.  PL  N.  Y.)  5  N.  Y.  Supp.  659. 
See,  also.  Ex  parte  Safford,  2  Low.  563,  565,  Fed.  Cas.  No.  12,212;  Knight 
V.  Mann,  118  Mass.  143,  145;  Hewes  v.  Jordan,  39  Md.  472,  484;  Simpson  v. 
Ki-umdick,  28  Minn.  352,  355,  10  N.  W.  18;  Langd.  Cas.  Sales,  1021. 

88  1  Best  &  S.  299,  30  Law  J.  Q.  B.  261. 


Ch.  2]  ACCEPTANCE    AND    RECEIPT.  55 

ery,  an  acceptance  will  readily  be  implied,  for  example,  from  mark- 
ing the  goods  with  the  name  of  the  buyer  by  his  consent,*'  al- 
though such  marking  would  not  constitute  an  actual  receipt;  but, 
if  the  goods  are  not  ready  for  delivery,  an  acceptance  will  not  read- 
ily be  implied.*^ 

If  the  contract  of  sale  be  for  goods  which  are  not  specific  when 
the  contract  is  entered  into,  there  can  be  no  acceptance  till  the 
seller  has  indicated  to  the  buyer  what  goods  he  proposes  to  deliver 
in  performance  of  the  contract,®*  and  it  seems  that  the  buyer  is 
then  entitled  to  a  reasonable  time  to  examine  the  goods  before 
deciding  whether  to  accept  them,*®  though  he  may  doubtless  waive 
his  right  of  examination.®"  After  the  goods  have  been  received 
by  the  buyer,  his  acceptance  may  be  proved  by  any  dealing  with 

8 «  Bill  V,  Bament,  9  Mees.  &  W.  36;  Hodgson  v.  Le  Bret,  1  Camp.  233; 
Proctor  V.  Jones,  2  Car.  &  P,  532,  per  Best,  C.  J.;  Saunders  v.  Topp,  4  Exch. 
390,  per  Alderson,  B.;  Benj.  Sales,  §  166,  note  y;  Rappleye  v.  Adee,  1  Thomp. 
&  C.  127. 

87  Maberley  v.   Sheppard,   10  Blng.  99. 

88  Langd.  Cas.  Sales,  1021. 

89  Hunt  V.  Hecht,  8  Exch.  814;  Nicholson  v.  Bower,  1  El.  &  El.  172; 
Smith  V.  Hudson,  6  Best  &  S.  431,  34  Law  J.  Q.  B,  145,  per  Cockburn,  C.  J.; 
Langd.  Cas.  Sales,  1021.  In  Morton  v.  Tibbett,  post,  Lord  Campbell  says: 
"The  acceptance  is  to  be  something  which  is  to  precede,  or  at  any  rate  to  be 
contemporaneous  with,  the  actual  receipt  of  the  goods,  and  Is  not  to  be 
a  subsequent  act  after  the  goods  have  been  actually  received,  weighed,  meas- 
ured, or  examined."  This  view  may  be  required  by  the  artificial  construc- 
tion put  on  "acceptance"  by  Lord  Campbell  and  the  latest  English  decisions. 
But,  where  the  term  is  construed  in  its  natural  sense,  the  right  to  examine 
before  acceptance  or  rejection  would  seem  to  exist  of  necessity.  See  Kent 
V.  Huskinson,  3  Bos.  &  P.  233. 

«o  "It  [acceptance]  means  some  act  done  after  the  vendee  has  exercised, 
or  had  the  means  of  exercising,  his  right  of  rejection."  Himt  v.  Hecht,  8 
Exch.  814,  22  Law  J.  Exch.  293,  per  Martin,  B.  "According  to  Lord  Camp- 
bell [Morton  v.  Tibbett,  cited  post],  there  may  be  an  acceptance  and  receipt 
of  goods  by  a  purchaser  within  the  statute  of  frauds,  although  he  has  had  no 
opportunity  of  examining  them,  and  although  he  has  done  nothing  to  preclude 
himself  from  objecting  that  they  do  not  correspond  with  the  contract.  I 
agree  with  that  But  in  such  case  the  party  must  have  done  something  to 
waive  his  right  to  reject  the  goods."  Per  Bi-amwell,  B.,  in  Coombs  v.  Bristol 
&  E.  Ry.  Co.,  3  Hurl.  &  N.  510,  27  Law  J.  Exch.  401.  Of  course,  the  buyer 
may  waive  the  right  to  examine.    Currie  v.  Anderson,  2  El.  &  El.  592. 


56  FORMATION    OF    THE    CONTRACT.  [Ch.   2 

the  goods  on  his  part  as  owner,'*  for  example  by  a  resale,"  and 
even  by  his  retaining  them  for  such  time  as  to  lead  to  the  pre- 
sumption that  he  intended  to  keep  them  as  owner.*'  And  a  deal- 
ing with  the  goods,  such  as  to  constitute  an  acceptance,  may  take 
place  as  effectively  with  the  bill  of  lading,  which  represents  the 
goods,  as  with  the  goods  themselves.'*  An  acceptance  implied 
from  the  conduct  of  the  buyer  is  called  a  constructive  acceptance. 
Whether  the  acts  or  omissions  of  the  buyer  amount  to  a  construct- 
ive acceptance  is  a  question  of  fact  for  the  jury,  though  the  ques- 
tion is,  of  course,  to  be  determined  by  the  court,  if  the  evidence  is 
capable  of  only  one  construction.'"  It  is  sometimes  said  that  an 
acceptance  must  be  established  by  some  act  of  the  buyer,  and  that 
mere  words  are  not  enough,  but  the  cases  in  which  such  statements 
occur  generally  involve  simply  the  proposition  that  mere  words  are 
not  enough  to  constitute  acceptance  and  receipt,"  and  there  is  on 
principle  no  reason  why  the  acceptance  may  not  be  evidenced  by 

«i  Beaumont  v.  Brengeri,  5  C.  B.  301;  Parker  ▼.  Wallls,  5  El.  &  Bl.  21; 
Garfield  v.  Paris,  96  U.  S.  557,  563;  Vincent  v.  Germond,  11  Johns.  282;  Gray  v. 
Davis,  10  N.  Y.  285;  Jones  v.  Reynolds,  120  N.  Y.  213,  24  N.  E.  279;  Town- 
send  V.  Hargraves,  118  Mass.  325,  332;  Ex  parte  Safiford,  2  Low.  563,  Fed. 
Cas.  No.  12,212;  Barkalow  v.  Pfeiffer,  38  Ind.  214;  Bacon  v.  Eccles,  43  Wis. 
227,  238;  Sullivan  v.  Sullivan,  70  Mich.  583,  38  N.  W.  472. 

9  2  Chaplin  v.  Rogers,  1  East,  195;  HUl  v.  McDonald,  17  Wis.  100;  Phillips 
V.  Ocmulgoe  Mills,  55  Ga.  633;  Marshall  v.  Ferguson,  23  Gal.  66. 

»s  Bushel  V.  Wheeler,  15  Q.  B.  442;  Coleman  v,  Gibson,  1  Moody  &  R.  168; 
Currie  v.  Anderson,  2  El.  &  El.  592;  Farina  v.  Home,  16  Mees.  &  W.  119; 
Borrowscale  v.  Bosworth,  99  Mass.  379;  Spencer  v.  Hale,  30  Vt.  314;  Downs 
V.  Marsh,  29  Conn.  409;  Gaff  v.  Homeyer,  59  Mo.  345;  Hobbs  v.  Massasoit 
Whip  Co..  158  Mass.  194,  33  N.  E.  495. 

94  Currie  v.  Anderson,  2  El.  &  El.  592,  29  Law  J.  Q.  B.  87;  Meredith  v. 
Meigh,  2  El.  &  Bl.  364,  22  Law  J.  Q.  B.  401.  See  Quiutard  v.  Bacon,  99 
Mass.  185;  Rodgers  v.  Phillips,  40  N.  Y.  519. 

9  5  Edan  v.  Dudfield,  1  Q.  B.  302,  per  Donman,  C.  J.;  Bushel  v.  Wheeler, 
15  Q.  B.  442,  per  Coleman  and  Williams,  JJ.;  Garfield. v.  Paris,  96  U.  S.  557, 
563;  Hinchman  v.  Lincoln,  124  U.  S.  38,  8  Sup.  Ct.  369;  Stone  v.  Browning. 
68  N.  Y.  .598;    Shepherd  v.  Pressey,  32  N.  H.  49,  57. 

9  6  Shindler  v.  Houston,  1  N.  Y.  261;  Bailey  v.  Ogden,  3  Johns.  421;  Kel- 
logg v.  Witherhead,  6  Thomp.  &  C.  525;  Dole  v.  Stimpson,  21  Pick.  384;  Ed- 
wards V.  Grand  Trunk  Ry.  Co.,  54  Me.  105;  Kirby  v.  Johnson,  22  Mo.  354; 
Northrup  r.  Cook,  39  Mo.  208;  Clark  v.  Labreche,  63  N.  H.  397. 


Ch.  2]  ACCEPTANCE    AND    RECEIPT.  57 

the  buyer's  declarations.®''  Tlie  receipt  of  goods  by  a  carrier  or 
wharfinger  appointed  by  the  buyer  does  not  constitute  an  accept- 
ance. These  agents  have  authority  to  receive,  but  not  to  accept®* 
WJiether  Acceptance  must  he  in  Performance  of  the  Contract — In  England. 

Beginning  with  the  case  of  Morton  v.  Tibbett/'  a  different  con- 
struction began  in  England  to  be  placed  on  "acceptance,"  and  it 
has  become  established  that  the  acceptance  need  not  be  in  perform- 
ance of  the  contract,  but  that  any  dealing  with  the  goods  which 
recognizes  a  pre-existing  contract  of  sale  constitutes  an  accept- 
ance.^°°  In  Morton  v.  Tibbett,  the  defendant  had  made  a  verbal 
agreement  with  the  plaintiff  for  the  purchase  of  50  quarters  of 
wheat  according  to  sample,  each  quarter  to  be  of  a  specified 
weight,  and  the  wheat  was  received  on  the  defendant's  lighter  for 
conveyance  to  its  destination,  where  it  duly  arrived,  but  in  the 
meantime  the  defendant  resold  it  on  the  same  understanding  as  to 
weight.  The  wheat  on  arrival  was  rejected  by  the  second  pur- 
chaser for  short  weight,  and  was  thereupon  rejected  by  the  de- 
fendant on  the  same  ground.  It  was  held  that  the  defendant  had 
accepted,  and  Lord  Campbell,  after  observing  that  it  would  be  open 
to  the  buyer,  after  acceptance  of  a  part,  "to  object  at  all  events  to 
the  quantity  and  quality  of  the  residue,"  announced:  "We  are  of 
the  opinion  that  *  *  *  there  may  be  an  acceptance  and  receipt 
within  the  meaning  of  the  act,  without  the  buyer  having  examined 
the  goods,  or  done  anything  to  preclude  him  from  contending  that 
they  do  not  correspond  with  the  contract  The  acceptance  to  let 
in  parol  evidence  of  the  contract  appears  to  us  to  be  a  different 

•T  Caulkins  v.  Hellman,  47  N.  Y.  449;  Shepherd  v.  Pressey.  32  N.  H.  49, 
58;  Schmidt  v.  Thomas,  75  Wis.  529,  44  N.  W.  771;  Galvin  v.  MacKenzie,  21 
Or.  184,  27  Pac.  1039.  See  Stone  v.  Browning,  68  N.  Y.  598.  Acceptance  Is 
evidence  by  mere  words,  where  the  contract  is  for  specific  goods,  supra. 

9  8  Hanson  v.  Armitage,  5  Barn.  &  Aid.  557;  Norman  v.  Phillips,  14  Meea 
&  W.  276;  Hunt  v.  Hecht,  8  Exch.  814;  Meredith  v.  Meigh,  2  El.  &  Bl.  370, 
22  Law  J.  Q.  B.  401,  overniling  Hart  v.  Sattley,  3  Camp.  528;  Allerd  v. 
Greasert,  61  N.  Y.  1,  5;  Jones  v.  Mechanics'  Bank,  29  Md.  287;  Johnson  v. 
Cuttle,  105  Mass.  447;  Keiwert  v.  Meyer,  62  Ind.  587;  Grimes  v.  Van  Vechten, 
20  Mich.  410;  Billin  v.  Henkel,  9  Colo.  394,  13  Pac.  420;  Fontaine  v.  Bush, 
40  Minn.  141,  41  N.  W.  465;  Spencer  v.  Hale,  30  Vt  814,  contra. 

»»  15  Q.  B.  428.  19  Law  J.  Q.  B.  382. 

100  Chalm.  Sale,  121;  KeiT,  Dig.  Sales,  §  10. 


58  FORMATION    OF   THE    CONTRACT.  [Ch.  2 

acceptance  from  that  which  affords  exclusive  evidence  of  the  con- 
tract having  been  fulfilled.  We  are  therefore  of  the  opinion  in 
this  case  that,  although  the  defendant  had  done  nothing  which 
would  have  precluded  him  from  objecting  that  the  wheat  delivered 
was  not  according  to  the  contract,  there  was  evidence  to  justify 
the  jury  in  finding  that  the  defendant  accepted  and  received  it." 
It  would  seem  that  the  resale  before  examination  was  such  an  act 
of  ownership  as  was  inconsistent  with  the  continuance  of  the  right 
of  property  in  the  seller,  that  the  defendant  had  thereby  waived 
his  right  to  reject  the  wheat,  and  that  his  conduct  was  sufficient 
evidence  of  an  acceptance.^"^  But  the  construction  announced  by 
Lord  Campbell,  that  acceptance  does  not  preclude  rejection,  has, 
after  some  dissent,^"^  prevailed,  and  was  adopted  by  the  court  of 
appeals  in  the  recent  case  of  Page  v.  Morgan,^ °^  in  which  the  natu- 
ral meaning  of  "accept"  is  entirely  abandoned.  There  the  buyer  ex- 
amined the  goods  simply  to  see  if  they  agreed  with  the  sample, 
and  rejected  them  as  not  equal  to  sample,  and  it  was  held  that  this 
constituted  an  acceptance.  Brett,  M.  R.,  in  giving  judgment,  said: 
"All  that  is  necessary  is  an  acceptance  which  could  not  have  been 
made  except  upon  admission  that  there  was  a  contract,  and  the 
goods  were  sent  to  fulfill  that  contract."  "I  rely  *  *  *  on  the 
fact  that  the  defendant  examined  the  goods  to  see  if  they  agreed 
with  the  sample.  I  do  not  see  how  it  is  possible  to  come  to  any 
other  conclusion  with  regard  to  that  fact  than  that  it  was  a  dealing 
with  the  goods,  involving  an  admission  that  there  was  a  contract" 

101  BenJ.  Sales,  §  150. 

102  Hunt  V.  Hecht,  8  Exch.  814,  22  Law  J.  Exch.  29,3;  Coombs  v.  Bristol 
&  E.  Ry.  Co.,  3  Hurl.  &  N.  510,  27  Law  J.  Exch.  401.  See,  also.  Smith  v. 
Hudson,  6  Best  &  S.  431,  34  Law  J.  Q.  B.  145;  Castle  v.  Sworder,  6  Hurl. 
&  N.  832,  30  Law  J.  Exch.  310.  per  Cockbnrn.  C.  J. 

108  15  Q.  B.  Div.  228.  See,  also,  Cusack  v.  Robinson,  1  Best  &  S.  299,  30 
Law  J.  Q.  B.  2G1,  per  Blackburn,  J.;  Currie  v.  Anderson,  2  El.  &  El.  592, 
29  Law  J.  Q.  B.  87,  per  Crompton,  J.;  Kibble  v.  Gough,  38  Law  T,  (N.  S.) 
204;  Rickard  v.  Moore,  Id.  841.  But  where  the  buyer  inspected  the  goods 
at  the  carrier's  wharf  on  arrival,  and  wrote  across  the  note  of  advice,  "Re- 
fused, not  according  to  representation,"  and  10  days  later  notified  his  re- 
fusal to  the  seller,  it  was  held  no  acceptance,  and  Page  v.  Morgan,  15  Q.  B. 
DIv.  228,  was  distinguished.    Taylor  v.  Smith  [1893]  2  Q.  B.  65. 


Ch.   2]  ACCEPTANCE    AND    RECEIPT.  59 

Same — In  the  United  States. 

In  the  United  States,  however,  the  later  artificial  construction  of 
the  English  couits  has  never  been  adopted,  and  it  is  clearly  estab- 
lished, in  accordance  with  the  statement  of  the  law  made  by  Lord 
Blackburn,^"*  and  with  the  earlier  English  cases,""*  that  the  ac- 
ceptance must  be  in  performance  of  the  conti'act;  that  is,  "there 
must  be  an  assent  by  the  buyer,  meant  to  be  final,  that  this  part  of 
the  goods  is  to  be  taken  by  him  as  his  property  under  the  contract, 
and  as  so  far  satisfying  the  contract."  ^°^  As  was  observed  in  Phil 
lips  V.  Bistolli,"^  in  a  passage  frequently  quoted  in  the  American 
cases:  "There  must  be  a  delivery  of  the  goods  by  the  vendor  with 
an  intention  of  vesting  the  right  of  possession  in  the  vendee,  and 
there  must  be  an  actual  acceptance  by  the  latter,  with  an  intention 
of  taking  to  the  possession  as  owner."  And  in  the  leading  case  of 
Oaulkins  v.  Hellman,  Rapallo,  J.,  said:  "Some  act  or  conduct  on  the 
part  of  the  vendee,  or  his  authorized  agent,  manifesting  an  inten- 
tion to  accept  the  goods  as  a  performance  of  the  contract,  and  to  ap- 
propriate them,  is  required."  "^  This  view  is  not  inconsistent  with 
the  statement  of  Lord  Campbell  in  Morton  v.  Tibbett  that  it  would 
be  open  to  the  buyer,  after  acceptance  of  a  part,  to  object  to  the 
quantity  or  quality  of  the  residue, — a  principle  which  is  fully  rec- 
ognized by  the  American  cases.""      It  is  enough  if  the  part  re- 

104  Ante,  p.  51. 

10  8  Howe  V.  Palmer,  3  Barn.  &  Aid.  321;  Hanson  v.  Armltage,  5  Barn.  & 
Aid.  557;  Phillips  v.  Bistolli,  2  Barn.  &  C.  511;  Smith  v.  Surnam,  9  Barn. 
&  C.  561;  Acebal  v.  Levy,  10  Bing.  376;  Norman  v.  Phillips,  14  Mees.  &  W. 
277. 

106  Caulkins  v.  Hellman,  47  N.  Y.  449;  Stone  v.  Browning,  51  N.  Y.  211, 
68  N.  Y.  598;  Cooke  v.  Millard,  65  N.  Y.  352,  370;  Knight  v.  Mann,  118  Mass. 
143,  120  Mass.  219;  Meehan  v.  Sharp,  151  Mass.  564,  24  N.  E.  907;  Shep- 
herd V.  Pressey,  32  N.  H.  49;  Gorham  v.  Fisher,  30  Vt.  428;  Smith  v.  Fisher, 
59  Vt.  53,  7  Atl.  816;  Hewes  v.  Jordan,  39  Md.  472;  Bacon  v.  Eccles,  43  Wis. 
227;  Scotten  v.  Sutter,  37  Mich.  526;  Simpson  v.  Krumdlck,  28  Minn.  352, 
354,  10  N.  W.  18;  Jamison  v.  Simon,  68  Cal.  17,  8  Pac.  502:  Garfield  v.  Paris, 
96  U.  S.  567;  Meyer  v.  Thompson,  16  Or.  194,  18  Pac.  16;  Schmidt  v.  Thomas, 
75  Wis.  529.  44  N.  W.  771. 

107  2  Barn,  &  C.  511. 

108  47   N,  Y.  449. 

109  Garfield  v.  Paris,  96  U.  S.  557,  562;  Hewes  v.  Jordan,  39  Md.  472,  483. 
In  Remick  v.  Sandford,  120  Mass.  309,  316,  it  is  said  by  Devens,  J.,  that  "if 


60  FOiniATION    OF   THE    CONTRACT.  [Ch.   2 

ceived  is  accepted  as  a  partial  fulfillment  of  the  contract  It  must, 
however,  distinctly  appear  that  the  goods  were  accepted  under  the 
<;ontract^^°  This  was  strongly  illustrated  in  Atherton  v.  New- 
hall,^  ^^  where  a  small  part  of  the  goods  was  delivered  by  an  ex- 
pressman, and  the  buyer,  having  learned  that  the  rest  of  the  goods 
had  been  destroyed  by  fire,  at  once  notified  the  seller  that  he 
would  pay  only  for  the  part  received.  It  was  held  that  there  was 
no  acce[)tance.  Gray,  C.  J.,  said:  "The  acceptance  by  the  buyer 
of  the  part  brought  by  the  expressman  was  not  a  sufScient  accept- 
ance to  take  the  sale  of  the  whole  out  of  the  statute,  because  it 
appears  that  it  was  not  with  the  intention  to  perform  the  whole 
contract,  and  to  assert  the  buyer's  ownership  under  it,  but,  on  the 
contrary,  that  he  immediately  informed  the  seller's  clerk  that  he 
would  be  responsible  only  for  the  part  received.'* 

SAME— ACTUAL  RECEIPT. 

30.  Actual  receipt  is  the  taking  possession  of  the  goods 
by  the  buyer  with  the  seller's  consent.  It  implies  such  a 
transfer  of  possession  as  to  divest  the  seller's  lien,  and 
may  be  effected: 

(a)  By  the   actual   delivery   of  the   goods  by  the 

seller  to  the  buyer  or  to  his  agent ;   or 

(b)  By  agreement. 

31.  BY  AGREEMENT— An  actual  receipt  takes  place 
by  agreement: 

(a)  When  the  goods  are  in  the  actual  possession 
of  the  seller,  if  he  becomes  bailee  of  the  goods 
for  the  buyer. 

the  buyer  accepts  the  goods  as  those  which  he  purchased  he  may  afterward* 
reject  them  if  they  are  not  what  they  were  warranted  to  be,  but  the  statute 
is  satisfied."  This,  however,  must  rest  on  the  rule  peculiar  to  Massachusetts, 
and  some  other  states,  that  the  buyer  may  avoid  the  sale  for  breach  of  war- 
ranty.   See  post,  p.  244. 

110  Davis  V.  Eastman,  1  Allen,  422;  Townsend  v.  Hargraves,  118  Mass. 
325;  Atherton  v.  Ncwhall,  123  Mass.  141;  Van  Woert  v.  Albany  &  S.  R.  Co., 
€7  N.  Y.  538;  Matthiessen  &  W.  Refining  Co.  v.  McMahon,  38  N.  J.  Law,  538. 

111  123  Mass.  141. 


Ch.   2]  ACCEPTANCE    AND    RECEIPT.  61 

(b)  When  the  goods  are  in  the  custody  of  a  third 

person  as  bailee  of  the  seller,  if  such  third 
person,  "with  the  consent  of  the  seller,  be- 
comes bailee  of  the  buyer, 

(c)  When  the  goods  are  in  the  custody  of  the  buy- 

er, as  bailee  of  the  seller,  if  with  the  consent 
of  the  seller  he  ceases  to  hold  them  as  bailee, 
and  holds  them  as  o^wner. 

Where  acceptance  is  shown,  a  very  liberal  construction  is  placed 
on  actual  receipt.^^^  The  simplest  way  in  which  a  transfer  of  pos- 
session may  be  effected  is  by  the  removal  of  the  goods  by  the  buyer 
or  his  agent.^^^  Receipt,  however,  implies  delivery,^^*  and  the  receipt 
must  be  with  the  seller's  consent,  and  with  the  intention  on  his 
part  of  transferring  possession  to  the  buyer  as  owner.  The  test 
for  determining  whether  there  has  been  such  a  transfer  of  possession 
is  whether  the  seller  has  parted  with  his  lien.^^"^  If  the  goods  are 
to  be  forwarded  to  the  buyer,  the  time  when  the  possession  is  trans- 
ferred depends  on  the  character  of  the  person  by  whom  the  goods  are 
carried.  If  they  are  carried  by  the  seller's  servant  or  agent,  there 
Is,  of  course,  no  transfer  of  possession  so  long  as  they  remain  in  his 
hands,^^®  If  they  are  forwarded  by  a  carrier  designated  by  the 
buyer,  an  actual  receipt  takes  place  when  they  are  delivered  to  him 
for  carriage.^  ^^      And,  where  goods  are  forwarded  by  a  common  car- 

112  Chalm.  Sale,  121. 

11 «  Blackb.  Sales,  25;  Benj.  Sales,  §  180;  Rodgers  v.  Jones,  129  Mass.  420, 
422. 

11*  Saunders  v.  Topp,  4  Exch.  390,  per  Parke,  B. 

iisPtiillips  V.  BistoUi,  2  Barn.  &  C.  511;  Baldey  v.  Parker,  Id.  37,  perHolroyd, 
J.;  Bill  V.  Bament,  9  Mees.  &  W.  37;  Cusack  v.  Robinson,  30  Law  J.  Q.  B. 
264,  1  Best.  &  S.  299;  Castle  v.  Sworder,  29  Law  J.  Exch.  235,  30  Law  J. 
Exch.  310,  6  Hurl.  &  N.  832;  Safford  v.  McDonough,  120  Mass.  290;  Rodgers 
V.  Jones,  129  Mass.  420;  Ex  parte  Safford,  2  Low.  5G3,  Fed.  Cas.  No.  12,- 
212;  Green  v,  Merriam,  28  Vt.  801;  Marsh  v.  Rouse,  44  N.  Y.  643;  Stone  v. 
Browning,  51  N.  Y.  211;  Maxwell  v.  Brown,  39  Me.  98,  103;  Gardet  v.  Bel- 
knap, 1  Cal.  399;  Hinchman  v,  Lincoln,  124  U.  S,  38,  8  Sup.  Ct.  369;  post, 
p.  210. 

lie  Grey  v.  Gary,  9  Daly,  363;  Agnew  v.  Dumas,  64  Vt.  147,  23  Atl.  634. 

iiT  Bullock  V.  Tschergi,  4  McCrary,  184,  13  Fed.  345;  Cross  v.  O'Donuell,  44 
N  Y.  GCl;  Wilcox  Silver  Plate  Co.  v.  Green,  72  N.  Y,  17.  See,  also,  cases 
cited  ante,  p.  57,  note  98,  and  post,  p.  195. 


62  FORMATION    OF   THE    CONTRACT.  [Ch,   2 

rier,  the  carrier  is,  in  the  absence  of  special  agreement,  regarded  as 
the  agent  of  the  buyer,  and  the  result  is  the  same  as  if  the  carrier 
were  specially  designated  by  him.^^*  The  seller  may,  however, 
preserve  his  lien  by  reserving  to  himself  the  jus  disponendi,  as  by 
taking  from  the  carrier  a  bill  of  lading  to  his  own  order,  and  in 
such  a  case  delivery  to  the  carrier  does  not  constitute  an  actual 
receipt.^^® 
Actual  Receipt  by  Agreement. 

The  possession  of  the  goods  may,  however,  be  transferred  and  an 
actual  receipt  take  place,  by  agreement,  without  the  physical  de 
livery  of  the  goods. 
Same —  Wlien  Goods  are  in  Possession  of  Seller. 

If  the  goods  are  in  the  possession  of  the  seller  at  the  time  of  the 
contract,  an  actual  receipt  takes  place  if  the  parties  agree  that  the 
seller  shall  cease  to  hold  as  owner,  and  shall  assume  the  character 
of  bailee  or  agent  of  the  buyer  in  respect  to  the  custody  of  the 
goods,  the  possession  of  the  seller  being  by  the  agreement  converted 
into  the  possession  of  the  buyer/^°  A  leading  case  on  this  point 
is  Elmore  v.  Stone,^"  where  the  buyer  of  horses  left  them  with  the 
seller  at  livery.  It  was  held  that  as  soon  as  the  seller  consented  to 
keep  them  at  livery  his  possession  was  changed,  and  that  from  that 
time  he  held,  not  as  owner,  but  as  any  other  liveryman  might  do. 
But  an  agreement  to  hold  in  this  changed  character  will  not  readily 
be  presumed,  and  it  must  distinctly  appear  that  the  seller  has 
consented  to  abandon  his  lien.^^^  Some  cases  even  hold  that  a 
mere  agreement  that  the  seller  shall  hold  as  bailee  is  not  enough, 

118  Post,  p.  195. 

119  Post,  p.  104. 

120  Elmore  v.  Stone,  1  Taunt.  458;  Beaumont  r.  Brengeri,  5  C.  B.  301; 
Marvin  v.  Wallis,  6  El.  &  Bl.  726,  25  Law  J.  Q.  B.  369;  Castle  v.  Sworder, 
29  Law  J.  Exch.  235,  30  Law  J.  Exch.  310,  6  Hurl.  «&  N.  832;  Cusack  v.  Rob- 
inson, 1  Best  &  S.  299,  per  Blackburn,  J.;  Green  v.  Merriam,  28  Vt.  801; 
Means  v.  Williamson,  37  Me.  556;  Ex  parte  Safford,  2  Low.  563,  Fed.  Cas. 
No.  12,212;  Janvrin  v.  Maxwell,  23  Wis.  51;  Rodgers  v.  Jones,  129  Mass. 
420,  422;  Safford  v.  McDouough,  120  Mass.  290,  291;  Webster  v.  Anderson, 
42  Mich.  554,  4  N.  W.  288.    Post,  p.  180. 

121  1   Taunt   458. 

122  Tempest  v,  Fitzgerald,  3  Barn.  &  Aid.  680;  Carter  v.  Toussaint,  5 
Barn.  &  Aid.  855;  Holmes  v.  Hoskins.  9  Exch.  753.  See  Blackb.  Sales,  26; 
post,  p.  210. 


Ch.  2]  ACCEPTANCE   AND    RECEIPT.  63 

and  that  some  act  Is  necessary  to  establish  the  changed  character 
of  the  ownership;  ^^^  but  on  principle  it  would  seem  that  the  only 
question  is  whether  the  agreement  is  distinctly  established.^^* 

Same —  When  Goods  are  in  Possession  of  Third  Person. 

If  the  goods  at  the  time  of  the  contract  are  in  the  custody  of  a 
third  person  as  bailee,  an  actual  receipt  takes  place  when  the  buyer, 
the  seller,  and  the  bailee  agree  that  the  latter  shall  cease  to  hold 
for  the  seller,  and  shall  hold  for  the  buyer,  or,  as  is  sometimes 
said,  when  the  bailee,  with  the  seller's  consent,  attorns  to  the 
buyer.^^'*  The  possession  of  the  agent  being,  in  contemplation  of 
law,  the  possession  of  the  principal,  a  transfer  of  possession  is  thus 
effected  by  simply  constituting  the  custodian  the  agent  of  the  buyer. 
The  consent  of  all  parties  is,  of  course,  essential,  and  therefore  an 
order  from  the  seller  to  a  warehouseman,  wharfinger,  carrier,  or 
other  bailee  to  deliver  the  goods  to  the  buyer  will  be  inoperative  to 
transfer  the  possession,  unless  the  bailee  attorns.^** 

128  Matthiessen  &  W.  Refining  Co.  v,  McMahon,  38  N.  J.  Law,  536;  Kirby 
V.  Johnson,  22  Mo.  354;  Bowers  v.  Anderson,  49  Ga.  143;  Malone  v.  Plato, 
22  Cal.  103.  It  is  said  in  Shindler  v.  Houston,  1  N.  Y.  261,  and  some  otlier 
cases  (ante,  p.  56),  that  mere  words  cannot  constitute  acceptance  and  receipt, 
and  that  superadded  to  the  language  of  the  contract  there  must  be  some  acts 
of  the  parties  amounting  to  a  change  of  possession.  See,  also,  Bailey  v. 
Ogden,  3  Johns.  399;  Ely  v.  Ormsby,  12  Barb.  570;  Hallenbeck  v.  Cochran, 
20  Hun,  416.  In  those  cases  there  was  nothing  to  show  a  change  of  posses- 
sion from  that  of  owner  to  that  of  bailee.  But  in  Rappleye  v.  Adee,  65  Barb. 
589,  where  the  sheep  sold  were  separated  from  the  rest  of  the  seller's  flock, 
the  buyer's  mark  put  upon  them,  and  the  parties  agreed  to  let  them  run  with 
the  seller's  sheep  for  a  few  days,  it  was  held  that  the  evidence  warranted  the 
jury  in  finding  delivery  and  acceptance,  and  that  the  rule  of  Shindler  v. 
Houston  was  properly  applied.    See,  also,  Wylie  v.  Kelly,  41  Barb.  594. 

124  Benj.   Sales,  §  182. 

125  Bentall  v.  Bum,  3  Barn.  &  C.  423;  Farina  v.  Home,  16  Mees.  &  W.  119; 
Simmonds  v.  Humble,  13  C.  B.  (N.  S.)  258;  Townsend  v.  Hargraves,  118 
Mass.  325,  332;  Bassett  v.  Camp,  54  Vt.  232;  post,  p.  210. 

126  Cases  cited  in  note  125,  supra.  But  where  the  goods  were  in  a  United 
States  bonded  warehouse,  and  the  duties  were  unpaid,  it  was  held  that  an  at- 
tornment by  the  warehouseman  could  have  no  effect  to  change  the  posses- 
sion, since  the  goods  were  in  possession  of  the  United  States,  and  the  ware- 
houseman was  not  the  bailee  of  the  seller.  In  re  Clifford,  2  Sawy.  428,  Fed, 
Cas.   No.   2,89a. 


64  FORMATION    OF    THE    CONTRACT.  [Ch.  2 

If,  however,  the  goods  are  on  the  premises  of  a  third  person,  who 
is  not  bailee,  as  timber  hing  at  the  disposal  of  the  seller  on  land 
of  a  person  from  whom  he  bought  it,  or  at  a  public  wharf,  it  seems 
that  possession  may  be  transferred  by  the  mere  agreement  of  the 
buyer  and  seller.^'^ 

Same —  When  Goods  are  in  Possession  of  Buyer. 

If  the  goods,  at  the  time  of  the  contract,  are  already  in  the  posses- 
sion of  the  buyer,  an  actual  receipt  takes  place  when  the  parties 
agree  that  the  latter  shall  cease  to  hold  them  as  bailee,  and  shall 
hold  them  as  owner.^^*  Thus,  in  Lillywhite  v.  Devereux,^'® 
it  is  said  that  if  the  buyer,  under  such  circumstances,  deals  with 
the  goods  in  a  manner  inconsistent  with  the  supposition  that  his 
former  possession  remains  unchanged,  he  may  be  said  to  have  ac- 
cepted and  actually  received  them;  the  court  apparently  taking 
the  view  that  the  consent  of  the  seller  to  the  transfer  of  possession 
was  given  by  entering  into  the  contract,  and  that  the  same  acts 
on  the  part  of  the  seller  which  were  evidence  of  an  acceptance  were 
also  evidence  that  he  had  begun  to  hold  in  the  character  of  owner. 


EARNEST  OR  PART  PAYMENT. 

32.  Earnest  is  something  of  value,  not  forming  part  of 
the  price  given,  and  received  to  mark  the  final  assent  of 
the  parties  to  the  bargain. 

33.  Part  payment  may  be  made  at  or  subsequently  to 
the  time  of  the  contract  of  sale,  either  in  money  or  any- 

12T  Tansley  v.  Turner,  2  Bing.  N.  C.  151;  Cooper  v.  Bill,  3  Hurl.  &  C.  722; 
Marshall  v.  Green,  1  C.  P.  Diy.  35,  per  Grove,  J.;  Leonard  v.  Davis,  1  Black, 
47();  Thompson  v.  Baltimore  &  O.  R.  Co.,  28  Md.  3'JG;  Bre\YSter  v.  Leith,  1 
Minn.  5()  (Gil.  40);  Langd.  Cas.  Sales,  1023;  Benj.  Sales,  S  178.  So  of  logs 
floating  in  the  river.    Post,  p.  180. 

12  8  Edan  v.  Dudfield,  1  Q.  B.  306;  Lillywhite  v.  Devereux,  15  Mees.  &  W. 
285;  Snider  v.  Thrall,  56  Wis.  674,  14  N.  W.  814;  Langd.  Cas.  Sales,  1023; 
Benj.  Sales,  §  173;  Cf.  Markham  v.  Jaudon,  41  N.  Y.  235,  242;  Brown  v.  War- 
ren, 43  N.  H.  430;  Dorsey  v.  Pike,  50  Hun,  534,  3  N.  Y.  Supp.  730.  Post, 
p.  210. 

129  15   Mees.   &   W.  285, 


Ch.   2]  EARNEST    OR    PART    PAYMENT.  65 

thing  of  value,  or  by  the  actual  extinguishment  of  an  ex- 
isting indebtedness  by  means  of  an  agreement  independent 
of  the  contract  of  sale. 

Earnest. 

The  giving  of  earnest  was  formerly  a  prevalent  custom  in  Eng- 
land, but  it  has  fallen  so  much  into  disuse  that  the  provision  in 
respect  to  it  is  of  little  practical  importance.  Earnest  may  be  money 
or  some  gift  or  token  given  ^'°  by  the  buyer  to  the  seller  to  mark 
the  final  assent  of  both  to  the  bargain.^ '^  It  follows  that  earnest 
and  part  payment  are  distinct.^ ^*  In  a  Massachusetts  case/^'  how- 
ever, it  was  said  that  earnest  is  regarded  as  part  payment  of  the 
price, — a  dictum  which  was  hardly  necessary  to  support  the  de- 
cision that  money  deposited  with  a  third  person  by  the  parties,  to 
be  paid  to  either  as  a  forfeiture  if  the  other  should  neglect  to  fulfil 
his  part  of  the  contract,  was  not  given  in  earnest.  The  thing  must 
have  some  value,  and  on  this  ground  a  note  given  by  the  buyer 
for  the  price,  and  void  for  want  of  consideration,  could  not  be  re« 
garded  as  given  in  earnest.^'* 
Part  Payment. 

The  part  payment,  like  the  acceptance  and  receipt,  may  be  sub- 
sequent to  the  contract  of  sale,^^"  unless,  as  in  some  states,  the  stat- 
ute expressly  provides  that  it  must  be  at  the  time  of  the  contract^'* 
The  payment  must,  of  course,  be  accepted.^^^ 

180  Where  the  buyer  drew  a  shilling  across  the  seller's  hand,  which  was 
called  "striking  a  bargain,"  but  kept  the  coin,  the  statute  was  not  satlsfled. 
Blenkinsop  v.  Clayton,  7  Taunt.  597. 

131  Brae.  1,  2,  c.  27. 

132  Benj.  Sales,  §  189;  Kerr,  Dig.  Sale,  §  16;  Howe  v.  Smith,  27  Ch.  Div. 
89,   101,  per   Fry,   L.  J. 

188  Howe  y.  Hay  ward,  108  Mass.  54.  See,  also,  Noakes  v.  Morey,  30  Ind. 
103. 

134  Krohn  v.  Bantz,  68  Ind.  277. 

13  6  Walker  v.  Nussey,  16  Mees.  &  W.  302,  per  Parke,  B.;  Thompson  ▼. 
Alger,  12  Mete.  (Mass.)  428,  435;  Marsh  v.  Hyde,  3  Gray,  331. 

18  6  Hunter  v.  Wetsell,  57  N.  Y.  375,  84  N.  Y.  549;  Jackson  v.  Tupper,  101 
N.  Y.  515,  5  N.  B.  65;  Bates  v.  Cheesbro,  32  Wis.  594;  Kerkhof  v.  Atlas  Pa- 
per Co.,  68  Wis.  674,  32  N.  W.  766. 

187  Edgerton  v.  Hodge,  41  Vt.  67U. 

SALES— 5 


66  FORMATION    OF    THE    CONTRACT.  [Ch.   2 

Payment  need  not  be  in  money,  but  may  be  by  means  of  any- 
thing of  value  wliicli  by  mutual  agreement  is  given  by  the  buyer,  and 
accepted  by  the  seller,  on  account  or  in  part  satisfaction  of  the 
price.^^'  Thus  it  would  seem  that  the  transfer  of  a  bill  or  note 
would  suffice;  ^^®  and,  under  the  New  York  statute  requiring  pay- 
ment at  the  time,  the  delivery  of  a  check  has  been  held  sufficient.^*" 
But  the  delivery  of  the  buyer's  note  does  not  operate  as  payment^** 
Nor  does  a  mere  agreement,  forming  part  of  the  contract  of  sale, 
to  set  off  a  debt  due  to  the  buyer  constitute  payment.^**  Such  an 
agreement,  to  be  effective,  must  be  by  independent  contract,^*^  and 
many  cases  even  hold  that  mere  words  are  not  sufficient,  and  that 
some  act,  such  as  the  surrender  or  cancellation  of  the  evidence  of 
the  indebtedness,  or  a  receipt,  is  requisite.^**  But,  on  principle, 
any  independent  verbal  agreement,  whereby  the  indebtedness  is  ex- 
tinguished, would  seem  to  be  sufficient.^*' 

THE  NOTE  OR  MEMORANDUM. 

34.  The  note  or  memorandum  must  state: 

(a)  The  names  or  descriptions  of  the  parties  in 
their  respective  capacities  as  seller  and 
buyer. 

!«•  White  V.  Drew,  56  How.  Pr.  53.  Surrender  of  note  of  seller  held  by 
buyer.  Sharp  v.  Carroll,  66  Wis.  62,  27  N.  W.  832;  Weir  v.  Hudnut,  115  Ind. 
525,  18  N.  E.  24;  Benj.  Sales,  §  194. 

18  9  Chamberlyn  v.  Delaiive,  2  Wils.  353;  Kearslake  v.  Morgan,  5  Term  R. 
513;  Griffiths  v.  Owen,  13  Mees.  &  W.  58. 

140  Hunter  v.  Wetsell,  84  N.  Y.  549. 

1*1  Krohn  v.  Bantz,  68  Ind.  277;  Combs  v.  Bateman,  10  Barb.  573;  Hooker 
V.  Knab,  26  Wis.  511. 

142  Walker  v.  Nussey,  16  Mees.  &  W.  302;  Artcher  v.  Zeh,  5  Hill,  200; 
Mattice  v.  Allen,  *42  N.  Y.  493;  Pitney  v.  Glen's  Falls  Ins.  Co.,  65  N.  Y.  6; 
Matthiessen  &  W.  Refining  Co.  v.  McMahon's  Adm'r,  38  N.  J.  Law,  536. 

148  Walker  v.  Nussey,  16  Mees.  &  W.  302,  per  Parke,  B.;  Norwegian  Plow 
Co.  V.  Hanthom,  71  Wis.  529,  37  N.  W.  825. 

144  See  Artcher  v.  Zeh,  Mattice  v.  Allen,  Pitney  y.  Glen's  Falls  Ins.  Co., 
Matthiessen  &  W.  Refining  Co.  v.  McMahon's  Adm'r,  cited  in  note  142. 

145  Dow  V.  Worthen,  37  Vt.  108.  An  agreement  that  the  buyer  shall  pay 
a  debt  due  by  the  seller  to  a  third  person  assented  to  by  the  latter.  Cotterill 
T.  Stevens,  10  Wis.  366;  Langd.  Cas.  Sales.  1037. 


Ch.   2]  THE    NOTE    OR    MEMORANDUM.  67 

(b)  The  price,  if  agreed  on. 

(c)  The  goods  sold. 

(d)  Any  other  material  terms  of  the  contract,  ex- 

cept that  it  need  not  state  the  consideration 
of  the  promise  of  the  party  to  be  charged. 

35.  The  note  or  memorandum  may  be  made  at  any 
time  before  action  brought,  and  may  be  -written  on  sepa- 
rate papers,  provided  they  are  all  signed  by  the  party  to 
be  charged  or  his  agent,  or  that  such  as  are  not  so  signed 
are  attached  to  or  referred  to  in  a  signed  paper. 

36.  The  note  or  memorandum  need  not  be  delivered  to 
the  party  seeking  to  enforce  the  contract;  it  is  sufficient 
if  it  admits  the  contract. 

Difference  between  Contract  in  Writing  and  Note  or  Memorandum. 

At  common  law,  the  parties  to  a  contract  may  reduce  it  to  writ- 
ing, or  may  agree  upon  some  existing  writing  as  containing  the 
terms  of  contract,  and  when  they  do  so  they  are  bound  by  the 
terms  of  the  written  contract,  and  are  not  allowed  to  offer  proof 
of  different  or  additional  terms.  The  same  rule  applies  to  a  writ- 
ing which  they  agree  upon  as  containing  part  of  the  terms  of  the 
contract;  for  example,  the  specifications  of  an  article  to  be  manu- 
factured. In  all  such  cases  the  contract,  so  far  as  it  is  reduced  to 
writing,  cannot,  in  general,  be  proved  by  any  other  means  than  by 
the  writing.  This  result  takes  place,  of  course,  only  when  the 
writing  is  by  the  consent  of  both  parties  agreed  upon  as  containing 
their  contract,  in  whole  or  in  part.^*®  The  statute  of  frauds 
leaves  the  common-law  rule  in  respect  to  contracts  in  writing  as 
it  was  before.  If  the  contract  be  in  writing,  the  writing  must  be 
proved  as  containing  the  only  legal  evidence  of  the  terms  of  the 
contract,  even  though  the  statute  has  been  satisfied  by  acceptance 
and  receipt,  or  by  earnest  or  part  payment,  and  although,  for  lack 
of  the  signature  of  the  party  to  be  charged,  the  writing  would  not 
be  sufficient  as  a  statutory  note  or  memorandum.^*^  The  note  or 
memorandum  differs  from  a  contract  in  writing,  in  that  under  the 

14  6  Black b.  Sales,  40-42;  BenJ.  Sales,  §§  201-206. 

1*7  Slevewright  v.  Archibald,  17  Q.  B.  103,  per  Brie,  J. 


68  FORMATION    OF   THE   CONTRACT.  [Ch.   2 

statute  any  writing  which  contains  the  terms  of  the  contract  is 
sufficient,  if  it  be  signed  by  the  party  to  be  charged.  A  contract 
in  writing,  indeed,  if  signed  by  the  party  to  be  charged,  will  satisfy 
the  statute,  but  a  mere  admission  in  writing  of  an  antecedent  oral 
contract  is  sufficient^*®  In  other  words,  the  statute  may  be  satis- 
fied in  writing  in  two  ways:  By  putting  the  contract  in  writing, 
or  by  furnishing  evidence  in  writing  of  an  oral  contract.^**  A 
mere  note  or  memorandum,  however,  unlike  a  contract  in  writing, 
need  not  be  introduced  in  evidence  at  all,  if  the  contract  can  be 
brought  within  the  first  or  second  exceptions,  though  in  such  a 
case  it  may  still  be  introduced  as  an  admission  of  the  terms  of  the 
contract,  of  which  it  would  be  strong,  though  not  conclusive,  evi- 
dence.^'" 
Note  or  Memorandum  in  the  Nature  of  an  Admission. 

The  note  or  memorandum  is  in  the  nature  of  an  admission  of  the 
contract  by  the  party  to  be  charged.  Thus  it  may  be  in  the  form 
of  a  letter,  and  it  is  immaterial  to  whom  the  letter  is  addressed, — 
whether  to  a  third  person  ^'^^  or  to  the  writer's  own  agent"'  The 
memorandum  is  sufficient  though  never  delivered;^*'  for  example, 
if  it  be  in  the  form  of  a  resolution  of  a  corporation  sought  to  be 
charged."*  It  is  even  sufficient  if  it  is  in  the  form  of  a  letter  re- 
pudiating,""^ but  not  denying,  the  existence  of  the  contract"*     It 

i*«  Slevewright  v.  Archibald,  17  Q.  B.  103,  per  Patteson,  J.;  Saunderson 
V.  Jackson,  2  Bos.  &  P.  238,  per  Lord  Eldon;  Parton  v.  Crofts,  33  Law  J.  0. 
P.  189,  per  Erie,  C.  J.;  Bailey  v.  Sweeting,  9  C.  B.  (N.  S.)  843,  30  Law  J.  C. 
P.  150;  Lerned  v.  Wannemacher,  9  Allen,  412,  416;  Townsend  v.  Hargraves, 
118  Mass.  325,  334;  Bird  v.  Munroe,  66  Me.  337. 

i*»  Langd.  Cas.  Sales,  1032. 

180  Blaclib.    Sales,    42. 

181  Peabody  v.  Speyers,  56  N.  Y.  230;  Moore  v.  Mountcastle,  61  Mo.  424. 

152  Gibson  v.  Holland,  L.  R.  1  C.  P.  1,  35  Law  J.  C.  P.  5;  Kleeman  v.  Col- 
lins, 9  Bush,  460,  467;  Lee  v.  Cherry,  85  Tenn.  707,  4  S.  W.  835. 

153  Drury  v.  Young,  58  Md.   546. 

184  Johnson  v.  Trinity  Church,  11  Allen,  123;  Tufts  v.  Plymouth  Gold  Min. 
Co.,  14  Allen,  407;  Argus  Co.  v.  Mayor,  etc.,  of  Albany,  55  N.  Y.  495. 

188  Bailey  v.  Sweeting,  9  C.  B.  (N.  S.)  843,  30  Law  J.  O.  P.  150;  Wilkinson 
V.  Evans,  L.  R.  1  C.  P.,  at  page  411;  Leather  Cloth  Co.  v.  Hieronimus,  L.  R. 
10  Q.  B.  140;  Louisville  Asphalt  Varnish  Co.  v.  Lorick,  29  S.  0.  533,  8  S.  B. 
8;  Drury  v.  Young,  58  Md.  546. 

iBe  Bacon  v.  Eccles,  43  Wis.  227. 


Ch.   2]  THE    NOTE    OR    MEMORANDUM.  69 

is  enough  if  the  memorandum  be  in  existence  at  the  time  the 
action  is  brought.^'*'  But  the  memorandum  cannot  be  regarded  as 
being  nothing  more  than  evidence  of  the  contract,  since  it  is  held 
that  its  existence  is  a  condition  precedent  to  the  right  of  action.^"^ 
What  the  Note  or  Memorandum  must  Contain — Names  of  Parties. 

The  statute  itself  expressly  provides  that  the  name  of  the  party 
to  be  charged  must  be  signed,  and  it  has  been  settled  by  the  deci- 
sions that  the  name  or  description  of  the  other  party  must  appear, 
since  it  takes  two  to  make  a  bargain,  and  otherwise  no  contract  is 
shown.  The  memorandum  must  not  only  contain  the  names  or 
descriptions  of  the  buyer  ^^®  and  of  the  seller,^^°  but  must  show 
which  is  buyer  and  which  is  seller.^*^  A  description  of  the  par- 
ties, however,  instead  of  their  names,  is  sufiBcient,  and  parol  evi- 
dence is  admissible  to  identify  the  persons  described,^'^  Thus, 
when  an  agent  signs  his  name  without  mentioning  a  principal,  the 
other  party  may  show  that  the  contract  was  really  made  with  the 
principal,  who  has  chosen  to  describe  himself  by  the  name  of  his 

167  See  cases  cited  in  next  note. 

168  Bill  V.  Bament,  9  Mees.  &  W.  36.  See,  also,  Gibson  v.  Holland.  L.  R. 
1  C.  P.  1,  35  Law  J.  C.  P.  5,  per  Willes,  J.;  Lucas  v.  Dixon,  22  Q.  B.  Div.  857; 
Bird  V.  Munroe,  66  Me.  337;  Phillips  v.  Ocmulgee  Mills,  55  Ga.  633. 

159  Champion  v.  Plnmmer,  1  Bos.  &  P.  (N.  R.)  252.  See,  also.  Sanborn  v. 
Flagler,  9  Allen,  474,  476;  Williams  v.  Robinson,  73  Me.  186;  McConnell 
V.  Brillhart,  17  111.  354;  Mayer  y.  Adrian,  77  N.  C.  83;  Harvey  v.  Stevens,  43 
Vt.  657. 

160  Klinitz  v.  Surry,  5  Esp.  267;  Vandenbergh  v,  Spooner,  L.  R.  1  Exch. 
316,  35  Law  J.  Exch.  201;  Grafton  v.  Cummings,  99  U.  S.  100;  Sherburne  v. 
Shaw,  1  N.  H.  157;  McElroy  v.  Seery,  61  Md.  389;  Mentz  v.  New  witter,  122 
N.  Y.  491,  25  N.  E.  1044. 

161  Vandenbergh  v.  Spooner,  L,  R.  1  Exch.  316,  35  Law  J.  Exch,  201;  Bailey 
V.  Ogden,  3  Johns.  399;  Calkins  v.  Falk,  1  Abb.  Dec.  291;  Nichols  v.  Johnson, 
10  Conn.  192;  Sanborn  v.  Flagler,  9  Allen,  474,  477.  The  requirement  that 
the  writing  should  show  which  is  seller  and  which  buyer  has  been  relaxed 
in  some  cases,  where  parol  evidence — for  example,  proof  of  the  occupation  of 
the  parties— has  been  admitted  to  raise  an  inference  on  this  point.  Newell 
V.  Radford,  L.  R.  3  C.  P.  52,  37  Law  J.  C.  P.  1;  Salmon  Falls  Manuf'g  Co.  v, 
Goddard,  14  How.  446.  But  see  dissenting  opinion  of  Curtis,  J.,  in  the  lat- 
ter case,  and  Grafton  v.  Cummings,  99  U.  S.  100,  111. 

162  Commins  v.  Scott,  L.  R.  20  Eq.  11;  Catling  v.  King,  5  Ch.  Div.  660;  Bibb 
V.  Allen,  149  U.  S.  481,  13  Sup.  Ct  950;  Jones  v.  Dow,  142  Mass.  130,  7  N.  E. 
839. 


70  FORMATION   OF   THE    CONTRACT.  [Ch.   2 

agent,  just  as  it  would  be  admissible  to  show  his  identity  if  he  had 
used  a  feigned  name.^®*  But  the  converse  of  the  proposition  does 
not  hold  true,  and  an  agent  so  contracting  cannot  show  by  parol 
that  he  did  not  intend  to  bind  himself,  since  this  would  be  to  con- 
tradict the  memorandum."* 
Same — Pnce. 

The  fourth  section  of  the  statute  requires  that  "the  agreement 
on  which  such  action  shall  be  brought,  or  some  memorandum  or 
note  thereof,  shall  be  in  writing,"  while  the  seventeenth  section 
simply  requires  that  "some  note  or  memorandum  in  writing  of  the 
said  bargain  be  made."  A  fine  distinction  has  been  drawn  in 
some  cases  between  "agreement"  and  "bargain,"  the  cases  which 
maintain  the  distinction  holding  that  "agreement"  includes  all  the 
'stipulations  of  the  contract,  and  that,  since  the  promise  of  one 
party  is  the  consideration  for  the  promise  of  the  other,  the  memo- 
randum must  contain  both  promises.""*  But  it  is  held,  even  by 
the  courts  which  hold  that  a  memorandum  under  the  fourth  sec- 
tion must  state  the  consideration,  that  under  the  seventeenth  sec- 
tion it  is  enough  if  the  memorandum  contain  the  promise  or  under- 
taking of  the  party  to  be  charged,  and  that  it  need  make  no  ex- 
press reference  to  the  promise  of  the  other  party."'  And  this 
rule  is  applied  even  where  the  memorandum  is  in  the  form  of  a 
mere  offer,  the  acceptance  of  which  is  verbal,"^  though  it  is  dififi- 

168  Trueman  v.  Loder,  11  Adol.  &  E.  589;  Dykers  v.  Townsend,  24  N.  Y.  57; 
Sanborn  v.  Flagler,  9  Allen,  474,  477;  Gowen  v.  Klous,  101  Mass.  449;  Briggs 
V.  Munchon,  56  Mo.  467. 

164  Higgins  V.  Senior,  8  Mees.  &  W.  834.  See,  also,  Nash  v.  Towne,  5 
Wall.  689;  Chandler  v.  Coe,  54  N.  H.  561;  Coleman  v.  First  Nat.  Bank,  53  N. 
Y.  388. 

168  The  leading  case  holding  that  under  the  fourth  section  the  memorandum 
must  state  the  consideration  is  Wain  v.  Warlters,  5  East,  10,  2  Smith,  Lead. 
Cas.  (8th  Ed.)  251,  Many  states  have  refused  to  follow  it.  See  Packard  v. 
Richardson,  17  Mass.  122.  the  leading  case  against  the  rule  there  decided. 
Benj.  Sales  (Corbin's  6th  Am.  Ed.)  §  232,  and  note;    Id.  §  248. 

166  Egerton  v.  Mathews,  6  East,  307;  Sari  v.  Bourdillon,  1  C.  B.  (N.  S.) 
188;  Smith  v.  Ide,  3  Vt  290;  Williams  v.  Robinson,  73  Me.  186;  Kerr,  Dig. 
Sale,  §  18;  Langd.  Cas.  Sales,  1032.  In  some  states  there  is  an  express  pro- 
vision either  that  the  consideration  must,  or  that  It  need  not,  be  stated.  See 
Browne,  St.  Frauds,  §§  376,  377. 

167  Warner  v.  Williugton,  3  Drew,  523,  25  Law  J,  Ch.  662;   Reuss  v.  Picks- 


Ch.  2]  THE    NOTE    OR   MEMORANDUM.  71 

cult  to  comprehend  how  a  writing  can  be  called  a  "memorandum" 
of  a  bargain  when  the  bargain  was  not  yet  made  at  the  time  the 
writing  was  signed.^^^  But  the  price  constitutes  a  material  part 
of  the  bargain,  and  must  be  stated;  ^^^  though  if  the  price  be  not 
agreed  upon,  but  is  implied,  a  memorandum  which  states  no  price 
is  suflBcient.^^** 
Same — Subject- Matter  and  Other  Terms. 

The  memorandum  must  designate  the  goods  sold,*^^  and  all  the 
other  terms  and  conditions  of  the  contract,  so  far  as  to  enable  the 
court  to  ascertain  what  they  were.^"  But  parol  evidence  is  ad- 
missible, as  in  the  case  of  other  writings,  to  identify  the  subject- 
ley,  L.  R.  1  Exch.  342,  35  Law  J.  Exch.  218;  Sanborn  v.  Flagler,  9  Allen,  474; 
Justice  V.  Lang,  42  N.  Y.  493;  Farwell  v.  Lowther,  18  111.  252;  Gradle  v. 
Warner,  140  111.  123,  29  N.  E.  1118. 

18  8  See  Watts  v.  Ainsworth,  1  Hurl.  &  C.  83,  31  Law  J.  Exch.  448.  per 
Bramwell,  B.;  Banks  v.  Chas.  P.  Harris  Manuf  g  Co.,  20  Fed.  667. 

169  Elmore  v.  Kingscote,  5  Bam.  &  C.  583;  Acebal  v.  Levy,  10  Bing.  376; 
Goodman  v.  Griffiths,  1  Hurl.  &  N.  574,  26  Law  J.  Exch.  145;   Ide  v.  Stanton, 

15  Vt.  685;  Ashcroft  v.  Butterworth,  136  Mass.  511;  James  v.  Muir,  33  Mich. 
223;  Stone  v.  Browning,  68  N.  Y.  598;  Phelps  v.  Stillings,  60  N.  H.  505; 
Hanson  v.  Marsh,  40  Minn.  1,  40  N.  W.  841.  Contra,  O'Neil  v.  Grain,  67 
Mo.  250.  If  the  price  Is  to  be  determined  in  a  manner  agreed  upon,  a  mem- 
orandum stating  the  agreement  on  this  point  is  sufficient.     Atwood  v.  Cobb, 

16  Pick.  227;  Argus  Co,  v.  Mayor,  etc.,  of  Albany,  55  N.  Y.  495;  Norton  v. 
Gale,  95  111.  533. 

170  Hoadly  v.  M'Laine,  10  Bing.  482;  Ashcroft  v.  Morrin,  4  Man.  &  G.  450; 
Benj.  Sales,  §  249. 

171  Thornton  v.  Kempster,  5  Taunt.  786;  Waterman  v.  Meigs,  4  Gush.  497; 
May  V.  Ward,  134  Mass.  127;   Johnson  v.  Delbridge,  35  Mich.  436. 

1T2  McLean  v.  Nicoll,  7  Jur.  (N.  S.)  999;  Pitts  v.  Beckett,  13  Mees.  &  W. 
743;  Archer  v.  Baynes,  5  Exch.  625;  Coddington  v.  Goddard,  16  Gray,  436, 
442;  Riley  v.  Farnsworth,  116  Mass.  223  (a  memorandum  containing  a  clause 
that  the  vendor  shall  "fulfill  the  conditions  of  sale,"  but  not  setting  forth  the 
conditions,  is  defective);  Callanan  v.  Chapin,  158  Mass.  113.  32  N.  E.  941; 
Williams  v.  Robinson,  73  Me.  186;  Stone  v.  Browning,  68  N.  Y.  598;  John- 
son V.  Buck,  35  N.  J.  Law,  338,  343;  James  v.  Muir,  33  Mich.  223;  Noiris 
V.  Blair,  39  Ind.  90;  Reid  v.  Kentworthy,  25  Kan.  701.  Terms  of  payment: 
Davis  V.  Shields,  26  Wend.  341;  Wright  v.  Weeks,  25  N.  Y.  153;  O'Donnell 
V.  Leeman,  43  Me.  158.  Time  of  delivery,  if  agreed:  Kriete  v.  Myer,  61 
Md.  558;  Smith  v.  Shell,  82  Mo.  215;  Hawkins  v.  Chase,  19  Pick.  502  (other- 
wise, if  not  agreed,  since  it  will  be  presumed  to  be  on  demand). 


72  FORMATION    OF   THE    CONTRACT.  [Cll.   2 

matter,"'  to  show  the  situation  of  the  parties  and  the  circum- 
stances, and  to  explain  the  meaning  of  words  and  latent  ambigui- 
ties."* 
Parol  Euidence  to  Show  that  the  Writing  is  not  a  Note  or  Memorandum. 

Since  the  note  or  memorandum  implies  the  existence  of  a  parol 
contract,  it  maj'  be  shown,  for  the  purpose  of  proving  the  insuffi- 
ciency of  the  memorandum,  that  it  is  not  the  record  of  any  parol 
contract;  either  that  no  contract  in  fact  existed,""^  or  that  the 
actual  contract  was  different  from  that  evidenced  by  the  memo- 
randum,— for  example,  that  it  omitted  a  material  term.^^'  As  was 
said  by  Lord  Selborne,  the  statute  of  frauds  "is  a  weapon  of  de- 
fense, and  not  offense,  and  does  not  make  any  signed  instrument  a 
valid  contract  by  reason  of  the  signature,  if  it  is  not  such  according 
to  the  good  faith  and  real  intention  of  the  parties."  ^^^ 
Parol  Evidence  as  to  Subsequent  Agreement  to  Modify  Original  Contract. 

At  common  law  a  written  contract,  not  under  seal,  may  be 
waived,  annulled,  changed,  or  qualified  by  means  of  a  subsequent 
parol  contract,  w  ritten  or  unwritten.     But  this  rule  is  not  applica- 

17  8  Macdonald  v.  Longbottom,  28  Law  J.  Q.  B.  293,  on  appeal  1  El.  &  El. 
977,  29  Law  J.  Q.  B.  256  ("your  wool");  Barry  v.  Coombe,  1  Pet.  640;  Tall- 
man  V.  Franklin,  14  N.  Y.  584;   Mead  v.  Parker,  115  Mass.  413. 

174  Salmon  Falls  Manuf  g  Co.  v.  Goddard,  14  How.  446;  BenJ.  Sales,  §§ 
213-215.  In  Doherty  v.  Hill,  144  Mass.  465,  11  N.  E.  581,  it  was  held  that, 
under  the  fourth  section,  a  memorandum  describing  equally  two  pieces  of 
real  estate  could  not  be  supplemented  by  introducing  a  letter  from  the  owner 
to  the  agent,  showing  which  estate  he  had  authority  to  sell,  nor  by  evidence 
that  the  purchaser  only  knew  of  one  estate  owned  by  the  seller.  There 
are  few  cases  involving  the  description  under  the  seventeenth  section,  and 
those  under  the  fourth  section  are  conflicting.  See  Wood,  St.  Frauds,  §  353; 
Williston,  Cas.  Sales,  p.  994,  note. 

17  6  Hussey  v.  Home- Payne,  4  App.  Cas.  315,  per  Lord  Calms,  at  page  320. 

176  Pitts  V.  Beckett,  13  Mees.  &  W.  743  (that  the  wool  sold  should  be  dry); 
McMuUen  v.  Helberg,  4  L.  R.  Ir.  94,  6  L.  R.  Ir.  463  (that  the  sale  was  by 
sample);  McLean  v.  Nicoll,  7  Jur.  (N.  S.)  999  (that  glass  should  be  of  best 
quality);  Peltier  v.  Collins,  3  Wend.  459  (warranty);  Boardman  v.  Spooner, 
13  Allen,  353  (that  the  goods  are  to  be  subject  to  approval);  Remick  v.  Sand- 
ford,  118  Mass.  102  (that  sale  was  by  sample).  See,  also,  Jenness  v.  Mt 
Hope  Iron  Co.,  53  Me.  20;  Lang  v.  Henry,  54  N.  H.  57;  Frank  v.  Miller,  88 
Md.  450;  Lee  v.  Hills,  66  Ind.  474,  and  see  note  27  ante. 

ITT  Hussey  v.  Horne-Payne,  4  App.  Cas.  311,  323. 


Ch.   2]  THE    NOTE    OR    MEMORANDUM.  73 

ble  to  a  contract  which  has  been  satisfied  by  a  statutory  note  or 
memorandum.  If  the  original  contract  be  thus  satisfied,  a  subse- 
quent contract,  not  evidenced  by  a  sufficient  note  or  memoran- 
dum, to  modify  the  original  contract,  is  invalid.^^'  The  subse- 
quent contract  being  invalid,  the  original  contract  may  be  en- 
forced.^^®  But  whether  parol  evidence  is  admissible  to  prove  a  sub- 
sequent contract  for  a  waiver  or  abandonment  of  the  entire  con- 
tract is  an  open  question.^***  Parol  evidence  is  admissible,  however, 
to  prove  substantial  performance  when  the  performance  is  com- 
pleted and  accepted,  and  such  performance  is  a  defense  by  way  of 
accord  and  satisfaction.^  ^^ 
Separate  Papers. 

It  is  immaterial  whether  the  note  or  memorandum  be  written  at 
one  time,  or  at  different  times,  and  it  may  consist  of  any  number 
of  letters,  telegrams,  or  other  pieces  of  paper.  If  the  connection 
between  the  papers  be  physical,  it  is  enough  if  they  were  attached 
at  the  time  of  signature,  and  this  may  be  shown  by  parol.^**  If 
they  were  never  attached,  the  signed  paper  must  make  such  a  ref- 
erence to  the  other  as  to  enable  the  court  to  construe  the  whole 
together,  as  containing  all  the  terms  of  the  bargain.^"     If  they  are 

1T8  stead  V.  Dawber,  10  Adol.  &  E.  57,  overruling  Cuff  v.  Penn,  1  Maule  &. 
S.  21;  Marshall  v.  Lynn,  6  Mees.  &  W.  109;  Swain  v.  Seamens,  9  Wall.  254, 
269;  Ladd  v.  King,  1  R.  I.  224;  Dana  v.  Hancock,  30  Vt.  G16;  Blood  v.  Good- 
rich, 9  Wend.  68;  Hill  v.  Blake,  97  N.  Y.  216;  Carpenter  v.  Galloway,  73 
Ind.  418.  Contra:  Cummings  v.  Arnold,  3  Mete  (Mass.)  486;  Stearns  v. 
Hall,  9  Cush.  31;  Whittier  v.  Dana,  10  Allen,  326;  Negley  v.  JefCers,  28  Ohio 
St,  90.     See,  also,  Richardson  v.  Cooper,  25  Me.  450. 

1T8  Moore  v.  Campbell,  10  Exch.  323,  23  Law  J.  Exch.  310;  Noble  v.  Ward, 
L.  R.  1  Exch.  117,  35  Law  J.  Exch.  81. 

180  Goss  V.  Lord  Nugent,  5  Barn.  &,  Adol.  65,  per  Denman,  C.  J.;  Harvey 
V.  Graham,  5  Adol.  &  E.  61,  73.  The  affirmative  was  held  in  Buel  v.  Miller, 
4  N.  H.  196. 

181  Moore  v.  Campbell,  10  Exch.  323,  per  Parke,  B.;  Leather  Cloth  Co.  v. 
Hieroiiimus,  L.  R.  10  Q.  B.  140;  Long  v.  Hartwell,  34  N.  J.  Law,  116,  127; 
Ladd  V.  King,  1  R.  I.  224,  231;  Swain  v.  Seamens,  9  Wall.  254;  Langd.  Cas. 
Sales,  1034 

182  Ken  worthy  v.  Schofield,  2  Bam.  &  C.  945,  per  Holroyd,  J. 

183  Saunderson  v.  Jackson,  2  Bos.  &  P.  238;  Jackson  v.  Lowe,  1  Bing.  9; 
Salmon  Palls  Manuf'g  Co.  v.  Goddard,  20  Curt.  Dec.  376;  14  How.  446; 
Newton  v.  Bronson,  13  N.  Y.  587;    Fisher  v.  Kuhn,  54  Miss.  480;    Olson  v. 


74  FORMATION    OF    THE    CONTRACT.  [Ch.   2 

not  connected  by  attachment  or  reference,  they  cannot  be  con- 
nected by  parol. ^^*  Parol  evidence  is,  however,  admissible  to  ex- 
plain an  ambiguous  reference,  and  to  identify  the  document  to 
which  the  signed  paper  refers.^ ^^  Papers  connected  by  reference 
must  be  consistent,  for  otherwise  it  would  be  impossible  to  deter- 
mine what  the  bargain  was  without  parol  evidence  to  show  which 
stated  it  correctly.^®"      The  memorandum  may  be  in  pencil.^*' 

SAME— SIGNATURE  OF  THE  PARTY. 

37.  Only  the  signature  of  the  party  against  whom  the 
contract  is  sought  to  be  enforced  is  required. 

Sharpless  (Minn.)  55  N.  W.  125;  Ryan  v.  U.  S.,  13G  U.  S.  68,  10  Sup.  Ct.  913; 
Bayne  v,  Wiggins,  139  U.  S.  210,  11  Sup.  Ct  521.  But  if  all  the  separate  pa- 
pers are  signed,  reference  in  the  one  to  the  other  need  not  be  made,  If  by 
inspection  and  comparison  it  appears  that  they  severally  form  part  of  the 
same  transaction.  Thayer  v.  Luce,  22  Ohio  St.  62.  The  paper  referred  to 
need  not  be  in  existence  when  the  signed  paper  Is  executed.  Freeland  v. 
Ritz,  154  Mass.  257,  28  N.  E.  226. 

i84Hinde  v.  Whitehouse,  7  East,  558;  Kenworthy  v.  Schofield,  2  Barn.  & 
C.  945;  Pierce  v.  Corf,  L.  R.  9  Q.  B.  210;  Boydell  v.  Drummond,  11  East, 
142;  Johnson  v.  Buck,  35  N.  J.  Law,  338;  O'Donnell  v.  Leeman,  43  Me. 
158;  Morton  v.  Dean,  13  Mete.  (Mass.)  385;  Coe  v.  Tough,  116  N.  Y.  273,  22 
N.  E.  550;  Frank  v.  Miller,  38  Md.  450;  Brown  v.  Whipple,  58  N.  H.  229; 
North  V.  Mendel,  73  Ga.  400.  But  in  Lerned  v.  Wannemacher,  9  Allen,  412, 
it  was  held  that,  when  a  memorandum  is  drawn  up  in  duplicate,  one  signed 
by  the  seller  and  the  other  by  the  buyer,  they  may  be  read  together  as  if 
signed  by  both.  See,  also,  Rhoades  v.  Castner,  12  Allen,  130.  In  Ridgway 
V.  Ingram,  50  Ind.  145,  where  the  memorandum  was  indorsed  on  an  order 
of  sale,  but,  without  referring  to  It,  the  court  held  that  there  was  no  con- 
nection.    Followed  in  Wilstach  v.  Heyd,  122  Ind.  574,  23  N.  E.  963. 

18B  Ridgway  v.  Wharton,  6  H.  L.  Cas.  238  (instructions);  Baumann  v. 
James,  3  Ch.  App.  508  ("terms  agreed  upon");  Long  v.  Millar,  4  C.  P.  Div. 
450  ("purchase");  Cave  v.  Hastings,  7  Q.  B.  Div.  125  ("our  arrangement"); 
Beckwith  v.  Talbot,  95  U.  S.  289  (but  see  Grafton  v.  Cummings,  99  U.  S. 
100,  112).  An  extreme  application  of  the  rule  admitting  parol  evidence  was 
made  in  Louisville  Asphalt  Varnish  Co.  v.  Lorick,  29  S.  C.  533,  8  S.  E.  8.  The 
late  case  of  Oliver  v.  Hunting,  44  Ch.  Div.  205,  seems  Irreconcilable  with  the 
earlier  decisions. 

188  Smith  v.  Surman,  9  Barn.  &  C.  561;  Thornton  v.  Kempster,  5  Taunt  786. 
Calkins  v.  Falk,  1  Abb.  Dec.  291;   Phippen  v.  Hyland,  19  U.  C.  C.  P.  416. 

18T  Clason's  Ex'rs  v.  Bailey,  14  Johns.  484;  Merritt  v.  Clason,  12  Johns.  102. 


Ch.   2]  THE    >fOTE    OR   MEMORANDUM.  75 

38.  The  signature  may  be  by  mark  or  initials,  and  may 
be  -written  in  pencil.  Unless  the  statute  requires  the  name 
to  be  "subscribed,"  the  signature  may  be  printed,  and 
may  be  at  the  beginning  or  in  the  body  of  the  document. 

Although  the  seventeenth  section  requires  the  writing  to  be  signed 
by  the  "parties"  ^^®  to  be  charged,  the  memorandum  is  sufficient  if 
signed  only  by  the  party  against  whom  the  contract  is  sought  to 
be  enforced.^ ^"^  It  follows  that  the  contract  is  good  or  not  at  the 
option  of  the  party  who  has  not  signed. 

The  signature  may  be  by  mark,^^"  though  not  by  mere  descrip- 
tion,^*^ or  may  be  by  initials,  if  they  are  intended  as  a  signature.^**  It 
may  be  writteninpencil;  ^®^  or  it  may  be  printed,  provided  there  is  suf- 
ficient evidence  of  the  adoption  of  the  printed  name,  as  where  the  sel- 
ler fills  out  and  gives  the  buyer  a  bill  of  parcels,  with  the  name  of  the 
seller  printed  thereon.^**  Some  statutes  require  the  name  to  be  "sub- 
is*  The  language  of  the  fourth  section  is  "by  the  party  to  be  charged." 

189  Allen  v.  Bennet,  3  Taunt.  169;  Thornton  v.  Kempster,  5  Taunt.  786 
Clason's  Ex'rs  v.  Bailey,  14  Johns.  484;  McCrea  v.  Purmort,  16  Wend.  460 
Justice  v.  Lang,  42  N.  Y.  493;  Old  Colony  R.  R.  v.  Evans,  6  Gray,  25,  31 
Williams  v.  Robinson,  73  Me.  186;  Hodges  v.  Rowing,  58  Conn.  12,  18  Atl. 
979;  Easton  v.  Montgomery,  90  Cal.  307,  27  Pac.  280;  Cunningham  v.  Wil- 
liams, 43  Mo.  App.  629.  See,  also,  Reuss  v.  Picksley,  L.  R.  1  Exch.  342, 
and  other  cases  cited  in  note  167,  ante,  which  hold  that  a  written  offer  ac- 
cepted by  parol  is  a  sufficient  memorandum.  Contra,  Wilkinson  v.  Heav- 
enrich,  58  Mich.  574,  26  N.  W.  139. 

190  Baker  v.  Dening.  8  Adol.  &  E.  94  (under  fifth  section).  See,  also,  Zach- 
arie  v.  Franklin,  12  Pet.  151, 

i»i  A  letter  by  a  mother  to  her  son,  beginning,  "My  dear  Robert,"  and 
ending,  "Your  affectionate  mother,"  with  a  full  direction  containing  the 
son's  name  and  address,  is  not  sufficiently  signed.     Selby  v.  Selby,  3  Mer.  2. 

192  Sanborn  v.  Flagler,  9  Allen,  474;  Salmon  Falls  Manuf'g  Co.  v.  Goddard, 
14  How.  446.  See  Palmer  v.  Stephens,  1  Denio,  471;  Benj,  Sales,  §  257. 
The  omission  of  a  middle  name  is  immaterial.  Fessenden  v.  Mussey,  11 
Gush.  127. 

188  Merritt  v.  Clason,  12  Johns.  102;   Clason's  Ex'rs  v.  Bailey,  14  Johns.  484. 

18*  Saunderson  v.  Jackson,  2  Bos.  &  P.  238;  Schneider  v.  Norris,  2  Maule 
&  S.  286;  Drury  v.  Young,  58  Md.  546;  Com.  v.  Ray,  3  Gray,  441,  447,  Oth- 
erwise where  the  statute  requires  the  name  to  be  "subscribed."  Viele  v.  Os- 
good,  8  Barb.   130. 


76  FORMATION    OF    THE    CONTRACT.  [Ch.   2 

scribed,"  and  under  them  the  si^ature  must  be  at  the  end.^" 
Under  the  original  enactment,  however,  and  generally  in  the  ab- 
sence of  express  provisions  requiring  a  different  construction,  the 
signature  is  good,  though  it  be  at  the  beginning  or  in  the  body  of 
the  document;  but,  if  the  name  is  put  in  an  unusual  place,  it  is  a 
question  of  fact  whether  it  was  so  written  for  the  purpose  of  au- 
thenticating the  document.^^'  As  was  said  by  Lord  Westbury,  in 
a  case  ^®^  under  the  fourth  section,  where  it  was  held  that  the 
name,  which  occurred  in  the  body  of  the  instrument,  referred  only 
to  the  particular  part  in  which  it  was  found,  and  was  insufficient: 
"The  signature  must  be  so  placed  as  to  show  that  it  was  intended 
to  relate  and  refer  to,  and  that  in  fact  it  does  relate  and  refer  to, 
every  part  of  the  instrument." 

SAME— AGENTS  AUTHORIZED  TO  SIGN. 

39.  The  authority  of  an  agent  to  sign  the  memorandum 
may  be  conferred  by  parol,  and  may  be  proved  by  subse- 
quent ratification. 

40.  The  agent  must  be  a  third  person,  and  not  one  of 
the  parties;  but  a  person  who  acts  as  the  agent  of  one 
party  in  making  the  contract  may  act  as  the  agent  of  both 
parties  in  making  the  memorandum. 

The  statute  simply  provides  that  the  note  or  memorandum  shall 
be  signed  by  the  parties  to  be  charged,  "or  their  agents  thereunto 

195  Davis  V.  Shields,  26  Wend.  341;  James  v.  Patten,  6  N.  Y.  9;  Doughty 
V.  Manhattan  Brass  Co.,  101  N.  Y.  644,  4  N.  E.  747. 

18  6  Johnson  v.  Dodgson,  2  Mees.  &  W.  653;  Dun-ell  v.  Evans,  1  Hiu-1.  & 
G.  174,  31  Law  J,  Exch.  337;  Clason's  Ex'rs  v.  Bailey,  14  Johns.  484;  Hawkins 
V.  Chase,  19  Pick.  502;  Penniman  v.  Hartshorn,  13  Mass.  87;  Coddington  v. 
Goddard,  16  Gray,  436;  Batturs  v.  Sellers,  5  Har.  &  J.  117;  Drury  v.  Young, 
58  Md.  546;  Anderson  v.  Harold,  10  Ohio,  400;  McConnell  v.  Brillhart,  17  HI. 
354;  Tingley  v.  Bellingham  Bay  Boom  Co.,  5  Wash.  644,  32  Pac.  737,  and  33 
Pac.  1055.  Defendants'  clerk  by  their  authority  drew  up  a  letter  addressed 
to  them,  containing  the  terms  on  which  plaintiff  was  to  serve  them,  which 
plaintiff  signed.  Held,  that  the  letter  was  a  sufficient  memorandum  to  bind 
defendants.  Evans  v.  Hoare  [1802]  1  Q.  B.  593.  See,  also,  Smith  t.  Howell, 
11  N.  J.  Eq.  349;  Adams  v.  Field,  21  Vt  256. 

»»T  Caton  V.  Caton,  L.  R.  2  H.  L.  127. 


Ch.   2]  THE   NOTE   OR   MEMORANDUM.  77 

lawfully  authorized."  The  manner  in  which  their  agents  may  be 
authorized  is  left  to  the  rules  of  the  common  law.  Thus  the  agent 
need  not  be  authorized  in  writing,  and  subsequent  ratification  is 
equivalent  to  prior  appointment.^^*  And,  as  we  have  seen,  it  is  im- 
material whether  the  agent  sign  his  own  name  or  that  of  his  prin- 
cipal.^®' Authority  to  contract  implies  authority  to  sign  the  mem- 
orandum, and  the  memorandum  may  be  made  subsequently  to  the 
contract,  if  the  authority  has  not  been  revoked.^"" 
Who  May  be  Agent  to  Sign. 

The  agent  to  sign  must  be  a  third  person,  and  not  the  other  party 
to  the  contract.^ °^  This  rule  does  not,  however,  exclude  the  agent 
of  the  seller  from  acting  as  the  agent  of  buyerj^"^  but  such  agency 
must  be  clearly  proved.  For  example,  the  mere  fact  that  the  sel- 
ler's salesman  signs  his  own  name  to  the  memorandum  at  the  re- 
quest of  the  buyer  is  not  proof  of  agency  to  sign  the  buyer's 
name.*"* 

The  auctioneer  at  a  public  sale  is  the  agent  of  the  buyer  as  well 
as  of  the  seller  to  sign  the  memorandum.^"*  "The technical  groundis," 

188  Maclean  v.  Dunn,  4  Blng.  722;  Soames  v.  Spencer,  1  Dowl.  &  R.  32; 
Hawkins  v.  Chase,  19  Pick.  502,  505;  Batturs  v.  Sellers,  5  Har.  &  J.  117; 
Yerby  v.  Grigsby,  9  Leigh,  387;  Gonaway  v.  Sweeney,  24  W.  Va.  643;  Roehl 
V.  Haumesser,  114  Ind.  311,  15  N.  E.  345;  Wiener  v.  Whipple,  53  Wis.  298, 
302,   10  N.   W.1433. 

199  Ante,  p.  69.  See,  also,  Williams  v.  Bacon,  2  Gray,  387;  Yerby  v. 
Grigsby,  9  Leigh,  387;  Gonaway  v.  Sweeney,  24  W.  Va.  649;  Hargrove  v.  Ad- 
cock,  111  N.  C.  166,  16  S.  E.  16. 

200  Williams  v.  Bacon,  2  Gray,  387,  per  Merrick,  J.;  Farmer  v.  Robinson, 
cited  in  note  to  Heyman  v.  Neale,  2  Camp.  337. 

201  Sbarman  v,  Brandt,  L.  R.  6  Q.  B.  720;  Wright  v.  Dannah,  2  Camp.  203; 
Farebrother  v.  Simmons,  5  Barn.  &  Aid.  333  (memorandum  signed  by  auc- 
tioneer, suing  as  seller);  Smith  v.  Arnold,  5  Mason,  414,  Fed.  Gas.  No.  13,- 
004;  Bent  v.  Cobb,  9  Gray,  397;  Johnson  v.  Buck,  35  N.  J.  Law,  338,  342; 
TuU  v.  David,  45  Mo.  444. 

«oa  Durrell  v.  Evans,  30  Law  J.  Exch.  254,  6  Hurl.  &  N.  660;  Benj.  Sales, 
§§  267,   267a. 

208  Graham  v.  Musson,  5  Bing.  N.  C.  603;  Graham  v.  Fretwell,  3  Man.  & 
G.  368;  Murphy  v.  Boese,  L.  R.  10  Exch.  126.  See,  also,  Sewall  v.  Fitch,  8 
Cow.  215;  IJams  v.  Hoffman,  1  Md.  423;  Bamber  v.  Savage,  52  Wis.  110,  8 
N.  W.   609. 

204  Simon  v.  Metivier,  1  Wm.  Bl.  599;  Hinde  v.  Whitehouse,  7  East,  558; 
Morton  v.  Dean,  13  Mete.  (Mass.)  385;  McComb  v.  Wright,  4  Johns.  Ch.  659; 


78  FORMATION    OF   THE    CONTRACT.  [Ch.  2 

as  was  said  by  Shaw,  C.  J.,  "that  the  purchaser,  by  the  very  act  of  bid- 
ding, connected  with  the  usage  and  practice  of  auction  sales,  loudly 
and  notoriously  calls  on  the  auctioneer  or  his  clerk  to  put  down  his 
name  as  the  bidder,  and  thus  confers  on  the  auctioneer  or  his  clerk 
authority  to  sign  his  name,  and  this  is  the  whole  extent  of  his  au- 
thority." 2°°  It  follows  that  the  auctioneer's  authority  to  sign  the 
memorandum  ends  with  the  sale,  and  that  a  memorandum  subse- 
quently signed  is  invalid,^''"'  and  that  he  is  not  the  agent  to  sign 
for  the  buyer  at  a  private  sale.^"  The  auctioneer's  clerk,  as  well 
as  the  auctioneer  himself,  may  make  the  memorandum,  provided,  at 
least,  that  he  acts  openly  in  entering  the  bids,  so  that  the  assent 
of  the  bidder  may  be  implied.^"' 

The  signature  of  a  clerk  of  a  telegraph  company  to  a  dispatch,  the 
sending  of  which  is  authorized  by  either  party,  is  sufficient."'     An 
agent  must  sign  as  such,  and  his  signature  as  a  mere  witness  is 
inoperative.*^" 
Same — Broker. 

Brokers  are  as  a  rule  agents  for  both  parties.  When  so  acting, 
they  have  authority  to  do  all  that  is  necessary  to  bind  the  bargain, 
and  hence  may  sign  the  requisite  memorandum.* ^^     In  this  country 

Harvey  v.  Stevens,  43  Vt.  653;  Johnson  v.  Buck,  35  N.  J.  Law,  338;  Gill  v. 
Hewett,  7  Bush,  10. 

20  6  Gill  V.  Bicknell,  2  Gush.  355,  at  page  358.  See,  also,  Emmerson  v. 
Heelis,  2  Taunt.  38,  per  Sir  James  Mansfield.  The  inference  of  agency  to 
sign  for  the  bidders  may  be  rebutted.    Bartlett  v.  Purnell,  4  Adol.  '&  E.  792. 

208  Horton  v.  McCarty,  53  Me.  394.  Cf.  Smith  v.  Arnold,  5  Mason,  414. 
Fed.  Cas.  No.  13,004,  per  Story,  J.;  Bamber  v.  Savage,  52  Wis.  110,  113,  8  N. 
W.    609. 

207  Mews  V.  Carr,  1  Hurl.  &  N.  486,  26  Law  J.  Exch.  39.  Cf.  Bartlett  v. 
Purnell,  4  Adol.  &  E.  792. 

20  8  Bird  V.  Boulter,  4  Barn.  &  Adol.  443;  Johnson  v.  Buck,  35  N.  J.  Law, 
338;  Cathcart  v.  Kiernaghan,  5  Strob.  129;  Gill  v.  Bicknell,  2  Gush.  355,  358; 
Frost  V.  Hill,  3  Wend.  386;  Goate  v.  Terry,  24  U.  C.  G.  P.  571.  But  it  seems 
that  there  is  no  general  custom  by  which  the  clerk  as  such  is  the  bidder's 
agent.  Pierce  v.  Gorf,  L.  R.  9  Q.  B.  210,  215,  per  Blackburn,  J.  Cf.  Cathcart 
v.  Keii-naghan,  5  Strob.  129,  per  Waldlaw,  J. 

208  Godwin  v.  Francis,  L.  R.  5  C.  P.  295;  Smith  v.  Baston,  54  Md.  138; 
Howley  v.  Whipple,  48  N.  H.  487;  Gray,  Communication,  TeL  §§  138-142. 

210  Gosbell  V.  Archer,  2  Adol.   &  E.  500. 
»ii  Goddington  v.  Goddard,  16  Gray,  436. 


Ch.   2]  THE   NOTE    OR    MEMORANDUM.  79 

it  is  customary  for  the  broker  to  make  an  entry  of  the  sale  in  a 
book  kept  for  that  purpose,  and  such  an  entry,  if  it  contains  the 
terms  of  the  bargain,  is  a  sufficient  memorandum,*^'  nor  need  it 
be  signed  by  the  broker.^^^  A  note  containing  the  terms  of  the 
bargain,  and  delivered  by  him  to  either  party,  is  also  sufficient,^^* 
though,  if  he  delivers  to  buyer  and  seller  notes  which  materially 
differ,  there  is  no  valid  memorandum.^ ^' 

In  England  it  is  customary  for  the  broker,  when  he  makes  a  con- 
tract, to  reduce  it  to  writing,  and  to  deliver  to  each  party  a  copy  of 
the  terms  as  reduced  to  writing  by  him,  and  also  to  enter  them  in 
his  book  and  to  sign  the  entry.*^*  As  to  the  effect  of  the  entry  in 
the  broker's  book,  there  has  been  great  difference  of  opinion.  The 
view  which  seems  to  have  prevailed,  unlike  that  adopted  in  this 
country,  and  founded,  perhaps,  in  some  measure  on  the  fact  that 
brokers  in  London  were  until  recently  required  by  law  to  make 
such  entries,  is  that  the  entry  constitutes  the  contract  itself,  and  is  a 
contract  in  writing.*"     It  is  natural,  therefore,  that  difficult  que* 

212  Coddington  V.  Goddard,  16  Gray,  436;  Clason's  Bx'rs  v.  Bailey,  14 
Johns.  484;  Merritt  v.  Clason,  12  Johns.  102;  Sale  y.  Darragh,  2  Hilt  184; 
Williams  v.  Woods,  16  Md.  220;  Bacon  v.  Eccles,  43  Wis.  227. 

213  Coddington  v.  Goddard,  16  Gray,  436;  Merritt  v.  Clason,  12  Johns.  102; 
Clason's  Ex'rs  v.  Bailey,  14  Johns.  484. 

21*  Butler  V.  Thompson,  92  U.  S.  412;  Bibb  v.  Allen,  149  U.  S.  481,  13  Sup. 
Ct  950;  Remick  v.  Sandford,  118  Mass.  102;  Newberry  v.  Wall,  84  N.  Y.  576; 
Weidmann  v.  Champion,  12  Daly,  522;  Bacon  v.  Eccles,  43  Wis.  227. 

21 B  Peltier  v.  Collins,  3  Wend.  459;  Suydam  v.  Clark,  2  Sandf.  133;  Bacon 
V.  Eccles,  43  Wis.  227;  Bibb  v.  Allen,  149  U.  S.  481,  13  Sup.  Ct.  950,  per 
Jackson,  J. 

216  Ben j.  Sales,  §  276. 

217  Heyman  v.  Neale,  2  Camp.  337,  per  Lord  EUenborough;  Thornton  v. 
Charles,  9  Mees.  &  W.  802,  per  Parke,  B.;  Sievewright  v.  Archibald,  17  Q. 
B.  115,  20  Law  J.  Q.  B.  529,  per  Lord  Campbell,  C.  J.,  and  Patterson,  J.; 
Thompson  v.  Gardiner,  1  C.  P.  Div.  777;  Thornton  v.  Meux,  Moody  &  M.  43, 
per  Abbott,  C.  J.;  Townend  v.  Drakeford,  1  Car.  &  K.  20,  per  Denman,  G.  J.; 
Thornton  v.  Charles,  supra,  per  Lord  Abinger.  But  these  authorities  are 
overruled  by  Sievewright  v.  Archibald,  supra.  Benj.  Sales,  §  294.  See  Langd. 
Gas.  Sales,  1035.  The  view  was  held  by  some  judges  ttiat  the  entry  not  only 
did  not  constitute  the  contract,  but  was  not  even  admissible  in  evidence,  at 
least  not  without  proof  that  it  was  seen  by  the  parties  when  they  contracted 
or  was  assented  to  by  them.    Gumming  v.  Roebuck,  Holt,  172,  per  Gibbs,  C.  J. 


80  FORMATION    OF   THE    CONTRACT.  [Ch.   2 

tions  have  arisen  in  England,  where  the  sold  note  and  the  bought 
note  differ  from  each  other  or  from  the  entry  in  the  broker's  book. 
The  result  of  the  English  decisions  on  this  point,  which  owing  to- 
the  difference  in  the  law  and  the  custom  are  of  comparatively  little 
value  as  precedents  in  this  country,  may  be  briefly  stated  as  fol- 
lows:"' (1)  If  the  broker  make  and  sign  an  entry  of  the  agree- 
ment in  his  books,  the  entry  so  signed  constitutes  the  original  agree- 
ment between  the  parties,  and  is  the  primary  evidence  thereof,'^* 
to  the  exclusion  of  any  notes  which  may  be  delivered  to  the  par- 
ties.^^°  But  if  such  notes  correspond  with  one  another,  and  differ 
from  the  entry,  it  becomes  a  question  of  fact  for  the  jury  whether 
their  acceptance  by  the  parties  constitutes  a  new  contract,  as  evi- 
denced by  the  notes."^  (2)  If  there  be  no  signed  entry,  the  notes,, 
if  they  correspond  with  one  another  and  state  all  the  terms  of  the 
bargain,  together  constitute  a  memorandum  of  the  contract*"  But 
if  they  do  not  correspond,  or  are  insufficient,  no  memorandum  at  all 
exists.'*'''  (3)  Either  note  by  itself  constitutes  a  memorandum,  in 
the  absence  of  evidence  that  the  signed  entry  or  the  other  note 
differs  therefrom."* 

EFFECT  OP  NONCOMPLIANCE  WITH  THE  STATUTE. 

41.  Failure  to  comply  ■with  the  provisions  of  the  statute 
in  respect  to  acceptance  and  receipt,  earnest  or  part  pay- 
ment, or  note  or  memorandum,  [probably]  does  not  ren- 
der the  contract  void,  but  merely  prevents  its  enforce- 
ment. 

218  The  statement  is  taken  from  Kerr,  Dig.  Sales,  §  20.    Cf.  Benj.  Sales,  J 
292. 
218  Cases  cited  in  note  217,  ante. 

220  Tlie  notes  do  not  constitute  the  contract  Thornton  v.  Charles,  9  Mees, 
&  W.  802,  per  Parke,  B.;  Heyman  v.  Neale,  2  Camp.  337,  per  Lord  Ellen- 
borough;   Sievewright  v.  Archibald,  20  Law  J.  Q.  B.  529,  17  Q.  B.  115. 

221  Thornton  v.  Charles,  9  Mees.  «&  W.  802;  Sievewright  v.  Archibald,  supra. 

222  Goom  V.  Aflalo,  6  Barn.  &  G.  117;   Sievewright  v.  Archibald,  supra. 

223  Thornton  v.  Kempster,  5  Taunt.  786;  Grant  v.  Fletcher,  5  Bam.  &  O. 
436;   Sievewright  v.  Archibald,  supra. 

22  4  Hawes  v.  Forster,  1  Moody  &  R.  368;  Parton  v.  Crofts,  16  0.  B.  (N.  S.> 
11;  Thompson  v.  Gardiner,  1  C.  P.  Div.  777. 


Ch.   2]  EFFECT    OF   NONCOMPLIANCE    WITH    THE   STATUTE.  81 

The  seventeenth  section  declares  that,  if  there  be  no  acceptance 
and  receipt,  no  earnest  or  part  payment,  and  no  note  or  mem- 
orandum, the  contract  shall  not  "be  allowed  to  be  good."  As  to 
the  meaning  of  these  words,  there  are  in  England  conflicting  dicta, 
but  no  direct  decision;  some  judges  assuming  that  the  words  of  the 
seventeenth  section  (unlike  those  of  the  fourth  section,  which  de- 
clares that  "no  action  shall  be  brought")  go  to  the  existence  of  the 
contract,^'"*  and  others  that  there  is  no  difference  in  the  effect  of 
the  two  sections,  and  that  the  provision  affects  only  the  remedy.''^* 
The  latter  view  is  sustained  by  the  weight  of  opinion, ^^^  and  is 
certainly  in  conformity  with  the  construction  of  the  section  in  other 
respects, — for  example,  that,  if  one  party  has  signed  the  contract, 
it  may  be  enforced  against  him,  though  not  against  the  other;  that 
a  mere  written  admission  at  any  time  before  action  brought,  even 
if  it  repudiates  the  contract,  is  sufficient,  because  it  is  evidence  of 
the  existence  of  the  contract;  that  acceptance  and  receipt  or  part 
payment  before  action  brought  satisfies  the  section.  This  view  has 
been  affirmed  by  decision  in  Massachusetts,^^®  though  the  opposite 
view  has  been  taken  iu  Missouri.--'^  In  some  states,  however,  the 
statute  declares  that  the  contract  shall  be  "void." 

225  Leroux  v.  Brown,  12  C.  B.  809;  Laythoarp  v.  Bryant,  2  Bing.  N.  C. 
735,  747. 

22  8  Bailey  v.  Sweeting,  9  C.  B.  (N.  S.)  843,  30  Law  J.  C.  P.  150,  per  Williams. 
J.;  Maddison  v.  Alderson,  8  App.  Cas.  467,  488,  per  Lord  Blackburn;  Britain 
V.  Rossiter,  11  Q.  B.  Div.  123,  127,  per  Brett,  L.  J, 

2  27  Pol.  Cont.  (2d  Am.  Ed,)  605;  Anson,  Cont.  67;  Clark,  Cent.  128,  145. 
See  Browne,  St.  Frauds,  c.  8;  9  Am.  Law  Rev.  434. 

228  Townsend  v.  Hargraves,  118  Mass.  325;  Amsinck  v.  American  Ins. 
Co.,  129  Mass.  185;  Wainer  v.  Milford  Mut.  Fire  Ins.  Co.,  153  Mass.  335,  26 
N.  B.  877.    See,  also,  Jackson  v.  Stanfield  (Ind.  Sup.)  37  N.  E.  14. 

*2»  Houghtaling  v.  Ball,  20  Mo.  563.  To  the  same  effect,  Green  v.  Lewis, 
26  U.  C.  Q.  B.  6ia 

BALES — 6 


U2  EFFECT    OF   THE    CONTIIACT    IN    PASSING    THE    PROPERTY.       [Ch.  3 


CHAPTER  m. 

EFFECT  OF  THE  CONTRACT  IN  PASSING  THE  PROPERTY— SALE  OF 
SPECIFIC  CHATTEL. 

42.  In  General. 

43.  Unconditional  Sale. 

44.  Rules  for  Ascertaining  Intention. 

45.  Conditional  Sale  Accompanied  by  Delivery, 
4G.  Sale  on  Trial  or  ApprovaL 

47.    Sale  or  Return. 

IN   GENERAL. 

42.  When  there  is  a  contract  for  the  sale  of  specific 
goods,  the  property  in  them  is  transferred  at  such  time  as 
the  parties  to  the  contract  intend  it  to  be  transferred. 

Executed  and  Executory  Sales. 

The  distinction  between  executed  and  executory  sales  has  been 
already  pointed  out^  As  we  have  seen,  in  an  executed  sale  the 
property  passes  at  once,  and  in  an  executory  sale  it  does  not  jjass 
until  the  contract  is  executed.  In  the  one  case  the  seller  sells; 
in  the  other,  he  promises  to  seJl.  We  have  also  seen  that  the  thing 
which  is  the  subject  of  sale  must  be  owned  by  the  seller,  and  that 
a  contract  to  sell  goods  not  yet  in  existence  or  acquired  by  the 
seller  can  only  take  effect  as  an  executory  sale."  Moreover,  even 
if  the  goods  which  are  the  subject  of  sale  are  actually  owned  by 
the  seller,  it  is  clear  that  if  they  are  part  of  other  similar  goods, 
as  10  sheep  out  of  a  flock  of  20,  the  property  in  the  part  sold  can- 
not pass  unless  the  particular  goods  are  designated;  in  other 
words,  unless  the  goods  are  specific'  But  provided  the  goods  are 
specific,  the  rule  holds  universally  that  the  property  in  them  will 
pass  whenever  the  parties  so  intend.*     And,  therefore,  whether  a 

1  Ante,  p.  5. 
«  Ante,  p.  22. 
8  Post,  p.  94. 

*  Seath  V.  Moore,  11  App.  Cas.  350,  370,  380;  Shepherd  v.  Harrison,  L.  R. 
5  H.  L.  110,  127;    Hatch  v.  OU  Co.,  100  U.  S.  124,  130;    Elgee  Cotton  Cases. 


Ch.   3]  UNCONDITIONAL    SALE.  83 

sale  be  executed  or  executory,  and,  if  originally  executory,  when  5 1 
will  become  executed,  depends  solely  upon  the  intention  of  the 
parties.  If  the  intention  is  clear,  no  question  can  arise.  But  be- 
cause the  parties  often  fail  to  make  clear  their  intention,  frequently 
for  lack  of  clearness  in  the  intention  itself,  the  courts  have  estab- 
lished certain  rules  of  construction  for  the  purpose  of  determining 
what  is  to  be  deemed  the  intention  of  the  parties. 


UNCONDITIONAL  SALE. 

43.  When  there  is  a  contract  for  the  sale  of  specific 
goods,  unless  a  different  intention  appears,  the  property  in 
the  goods  passes  to  the  buyer  -when  the  contract  is  made. 

By  the  modern  English  rule,  when  an  unconditional  bargain  is 
made  for  the  sale  of  specific  goods  in  a  deliverable  state,  if  nothing 
is  said  about  payment  or  delivery,  the  property  passes  immedi- 
ately, so  as  to  cast  upon  the  buyer  all  future  risk,  though  he  is  not 
entitled  to  the  possession  without  payment  of  the  price.°  In  other 
words,  the  property  passes  subject  to  the  seller's  lien.  This  rule 
rests  upon  the  presumed  intention  of  the  parties.  The  earlier 
English  law  was  different,  for  it  was  formerly  the  rule  that,  un- 
less payment  was  made  or  credit  given,  the  contract  was  presuma- 
bly executory;  that  is,  that  the  intention  of  the  parties  was  to 
transfer  the  property  in  consideration  of  actual  payment,  and  not 
merely  of  the  buyer's  promise  to  pay.'  The  rule,  being  one  of 
presumption,  must,  of  course,  yield  to  circumstances  from  which  a 

22  Wall.  180,  187;  Merchants'  Exch.  Bank  v.  McGraw,  8  C.  C.  A.  420,  59  Fed. 
972;  Terry  v.  Wheeler,  25  N.  Y.  520,  525;  Callaghan  v.  Myers,  89  111.  566, 
570;  Winslow  v.  Leonard,  24  Pa.  St.  14;  Kent  Iron  &  H.  Co.  v.  Norbeck,  150 
Pa.  St.  559,  24  Atl.  737;  Lingham  v.  Eggleston,  27  Mich.  324;  Blackb.  Sales, 
123;    Benj.  Sales,  §  309. 

6  Tarling  v.  Baxter,  6  Barn.  &  C.  360;  Simmons  v.  Swift,  5  Barn,  &  C.  862, 
per  Bayley,  J.;  Dixon  v.  Yates,  5  Barn.  &  Adol.  313,  per  Park,  J.;  Barr  v. 
Gibson,  8  Mees.  &  W.  390;  Martindale  v.  Smith,  1  Q.  B.  389;  Gilmour  t. 
Supple,  11  Moore.  P.  C.  566;  Seath  v.  Moore,  11  App.  Gas.  350,  370;  Benj. 
Sales,  §§  313,  317. 

8  Xoy,  Max.  pp.  87-89;  Blackb.  Sales,  171;  Benj.  Sales,  8  315;  2  Kent, 
Comm.  492. 


84  EFFECT    OF    TllK    CO.NTUACT    IN    PASSING    THE    PROPERTY.       [Cll.   3 

contrary  intention  is  to  be  inferred;  and  tliercfore  even  today  a 
sale  by  a  tl•adet^man  in  Ids  shop  is  presumed  to  be  executory.'  The 
general  rule  in  this  country  coincides  with  the  modern  English 
rule.*  A  fortiori,  if  payment  be  made  at  the  time  the  bargain 
or  credit  is  given,  the  property  passes  immediately.  It  is,  indeed, 
frequently  said  that  in  a  cash  sale  (and  all  sales  where  no  time  is 
agreed  upon  for  payment  are  presumed  to  be  cash  sales)  ®  the  proi>- 
erty  does  not  pass  until  payment.  But  tliis  is  not  a  correct  state- 
ment of  the  law,  since  the  seller's  lien  which  arises  in  such  cases 
can  only  exist  provided  the  property  is  in  the  buyer,  and  the  risk 
of  loss,  which  always  accompanies  the  right  of  property,  falls  upon 
him,  and  not  upon  the  seller.^"  It  is  true,  however,  that  the  buyer 
does  not  acquire  a  complete  title,  since  until  payment  he  has  not 
the  right  to  possession.  And  even  if  the  seller  delivers  posses- 
sion, if  he  does  so  upon  the  understanding,  express  or  implied,  that 
he  is  to  receive  immediate  payment,  he  may  reclaim  the  goods  in 
case  of  nonpayment" 

T  Bussey  v.  Barnett,  9  Mees.  &  W.  312;  Blackb.  Sales,  173.  Cf.  Paul  v. 
Reed,  52  N.  H.  136. 

8  Leonard  v.  Davis,  1  Black,  476,  483;  Blunt  v.  Little,  3  Mason,  107,  110, 
Fed.  Cas.  No.  1,578;  Morse  v.  Sherman,  lOG  Mass.  430;  Haskins  v.  Warren, 
115  Mass.  514,  533;  Goddard  v.  Binney,  Id.  450,  455;  Townsend  v.  Hargraves, 
118  Mass.  325,  332;  Wing  v.  Clark,  24  Me.  366;  Phillips  v.  Moor,  71  Me.  78; 
Olyphant  v.  Baker,  5  Denio,  370-383;  Bissell  v.  Balcom,  39  N.  Y,  275,  279: 
Johnson  v.  Elwood,  53  N.  Y.  431;  Morey  v.  Medbury,  10  Hun,  540;  Brock  v. 
O'Donnell,  45  N.  J.  Law,  441;  .Jenkins  v.  Jarrett,  70  N.  C.  255;  Sweeney 
V.  Owsley,  14  B.  Mon.  413;  Barrow  v.  Window,  71  111.  214;  Bortelson  v. 
Bower,  81  Ind.  512;  Powers  v.  Dellinger,  54  Wis.  389,  11  N.  W.  597;  Rail 
V.  Little  Falls  Lumber  Co.,  47  Minn.  422,  50  N.  W.  471;  Towne  v.  Davis 
(N.  H.)  22  Atl.  450;  Thompson  v.  Branuin  (Ky.)  21  S.  W.  1057;  2  Kent, 
Comm.  492. 

»  Scudder  v.  Bradbury,  106  Mass.  422,  427;  Goodwin  v.  Boston  &  L.  R.  Co., 
Ill  Mass.  487,  489;  Riley  v.  Wheeler.  42  Vt.  528;  Ward  v.  Shaw,  7  Wend. 
404;  Pickett  v.  Cloud,  1  Bailey,  362;  Wabash  Elevator  Co.  v.  First  Nat. 
Bank  of  Toledo,  23  Ohio  St.  311;  Michigan  C.  R.  Co.  v.  Phillips,  60  111.  190; 
Allen  V.  Hartfleld,  76  111.  3.58;  Fenelon  v.  Hogoboom,  31  Wis.  172,  176; 
Southwestern  Freight  &  Cotton  Exp.  Co.  v.  Stannard,  44  Mo.  71;  Beauchamp 
V.  Archer,  58  Cal.  431;  2  Kent,  Comm.  497;  post,  p.  178. 

10  See  cases  cited  In  notes  5  and  8,  supra. 

11  Haskins  v.  Warren,  115  Mass.  514,  534,  per  Wells,  J.;  Goodwin  v.  Boston 
&  L.  R.  Co.,  Ill  Mass.  487,  489;   I'almer  v.  Hand,  13  Johns.  434,  435;   Leven 


Ch.   3]  JtULES    FOR    ASCERTAINING    INTENTION.  85 


RULES  FOR  ASCERTAINING  INTENTION. 

44.  Unless  a  different  intention  appears,  the  foUo-wlng 
are  rules  for  ascertaining  the  intention  of  the  parties  as 
to  the  time  -when  the  property  in  the  goods  is  to  pass  to 
the  buyer: 

RULE  1 — When  there  is  a  contract  for  the  sale  of 
specific  goods,  and  the  seller  is  bound  to  do  some- 
thing to  the  goods  for  the  purpose  of  putting  them 
into  a  deliverable  state,  —  that  is,  into  a  state  in 
"which  the  buyer  is  bound  to  accept  them, — the  prop- 
erty does  not  pass  until  such  thing  is  done. 
flULE  2 — When  there  is  a  contract  for  the  sale  of  spe- 
cific goods  in  a  deliverable  state,  but  the  seller  [or 
the  buyer]  is  bound  to  -weigh,  measure,  test,  or  do 
some  other  act  with  reference  to  the  goods  for  the 
purpose  of  ascertaining  the  price,  the  property  does 
not  pass  until  such  act  is  done. 

T.  Smith,  1  Denlo,  571;  Hayden  y.  Demets,  53  N.  Y.  426,  431;  Morey  v.  Med- 
bury,  10  Hun,  540;  Allen  v.  Hartfield,  76  HI.  358,  361;  Fenelon  v.  Hogoboom, 
31  Wis.  172,  176;  Riley  v.  Wheeler,  42  Vt.  528,  532.  See,  also,  Tyler  v.  Free- 
man, 3  Cush.  261;  Whitney  v.  Eaton,  15  Gray,  225;  Hirschom  v.  Canney,  98 
Mass.  149;  Adams  v.  O'Connor,  100  Mass.  515;  Stone  v.  Perry,  60  Me.  48; 
Seed  V.  Lord,  66  Me.  580;  Peabody  v.  Maguire,  79  Me.  572,  575,  12  Atl.  630; 
Paul  V.  Reed,  52  N.  H.  136;  Dows  v.  Kidder,  84  N.  Y.  121;  Harris  v.  Smith, 
8  Serg.  iSz;  R.  20;  Lester  v.  McDowell,  18  Pa.  St.  91;  Wabash  Elevator  Co.  v. 
First  Nat.  Bank  of  Toledo,  23  Ohio  St.  311;  Fishback  v.  Van  Dusen,  33  Minn. 
Ill,  22  N.  W.  244;  2  Kent,  Comm.  497.  In  many  of  these  cases  it  is  said 
that  the  "property"  had  not  passed,  and  in  some  of  them  it  is  clear  that  it  had 
not,  either  because  at  the  time  of  the  bargain  the  goods  were  not  in  a  deliver- 
able state  or  were  not  specific,  or  because  delivery  was  to  be  made  by  the 
buyer  at  a  particular  place,  or  for  some  other  reason.  But  in  others  it  is  clear 
that  it  must  have  been  held,  had  the  question  been  raised,  that  the  risk  of 
loss  was  by  the  contract  cast  upon  the  buyer,  and  hence  that  the  property 
passed.  In  all  such  cases,  where  the  question  Is  simply  whether  the  buyer 
acquired  a  'good  "title,"  it  is  immaterial  to  determine  whether  the  sale  was 
conditional,  or  whether  only  the  delivery  was  conditional,  since  in  either  ca.se 
the  title  of  the  buyer  is  conditional  upon  payment.  See  Benj.  Sales  (Corbin's 
6th  Am.  Ed.)  §  318  et  seq. 


86  EFFECT   OF   THE    CONTRACT    IN    PASSING    THE    TROPERTY.       [Ch-   3 

Although  an  agreement  for  the  sale  of  a  specific  chattel  is  prima 
facie  an  executed  sale,  the  presumption  may,  as  we  have  seen,  be 
rebutted;  and,  if  it  ai)i)ears  that  the  jtarties  have  agreed  that  the 
property  shall  pass  on  tbe  performance  of  a  condition,  the  property 
will  not  j>ass  until  the  condition  is  performed;  and,  if  nothing  has 
occurred  in  the  meantime  to  defeat  the  transfer,  it  will  then  take 
place.  When  the  parties  have  not  expressed  their  intention  clear- 
ly, it  must  be  collected  from  the  whole  agreement.  For  the  pur- 
pose of  ascertaining  the  intention,  the  two  rules  of  construction 
stated  at  the  head  of  this  paragraph  have  been  adopted  uy  the 
courts.  These  rules,  of  which  there  is  no  trace  in  the  reports  be- 
fore the  time  of  Lord  EUenborough,  appear  to  have  been  adopted 
from  the  ci\il  law.^' 
Rule  1. 

Blackburn  observes  that  the  first  rule  is  founded  in  reason.  In- 
asmuch as  it  is  for  the  benefit  of  the  seller  that  the  property  should 
pass  and  the  risk  of  loss  be  thereby  transferred  from  the  seller, 
who  may  still  retain  possession  of  the  goods  as  security  for  the 
price,  it  is  reasonable  that,  where  the  seller  is  bound  to  do  some- 
thing before  he  can  call  upon  the  buyer  to  accept  the  goods,  the 
intention  of  the  parties  should  be  presumed  to  be  that  the  seller 
is  to  do  the  thing  before  obtaining  the  benefit  of  the  transfer.^' 
The  rule  is  firmly  established  both  in  England  ^*  and  in  America.^" 
Thus,  where  trees  are  to  be  trimmed,^ ^  cotton  to  be  ginned  and 
baled,^''  fish  to  be  dried,^*  grain  to  be  threshed,^^  or  hops  to  be 

n  Blackb.  Sales,  174. 

18  Blackb.  Sales,  175;   Benj.  Sales,  §  318  et  seq;   Chalm.  Sale,  §  21. 

"  Rugg  V.  Mlnett,  11  East,  210;  Acraman  v.  Morrice,  8  C.  B.  449,  19  Law 
J.  C.  P.  57;  Tansley  v.  Turner,  2  Scott,  238,  2  Bing.  N.  C.  151;  Boswell  v. 
Kilborn,  15  Moore,  P.  C.  309,  8  Jur.'  443;  Seath  v.  Moore,  11  App.  Cas.  350. 
370. 

16  Elgee  Cotton  Cases,  22  Wall.  180,  188;  Foster  v..  Ropes,  111  Mass.  10; 
Sumner  v.  Hamlet,  12  Pick.  76,  82;  North  Pacific  L.  &  M.  Co.  v.  Kerron,  5 
Wash.  214,  31  Pac.  595.  See,  also,  cases  cited  in  the  succeeding  notes  to  this 
paragraph. 

!'•  Acraman  v.  Morrice,  8  C.  B.  449,  19  Law  J.  C.  P.  57. 

17  Elgee  Cotton  Cases,  22  Wall.  180,  193;    Bond  v.  Greenwald,  4  Helsk.  453. 

18  Foster  v.  Ropes,  111  Mass.  10. 

»w  Groff  V.  Belch,  62  Mo.  400;   Thompson  v.  Conover,  32  N.  J.  Law,  468. 


Ch.  3]  RULES   FOB   ASCERTAINING    INTENTION.  87 

baled,'"  by  the  seller,  the  doing  of  these  things  is  presumptively  a 
condition  precedent  to  the  transfer  of  the  property.  And  if  the 
parties  contract  for  the  sale  of  an  unfinished  chattel,  as  a  partly- 
built  carriage  or  ship,  in  the  absence  of  anything  to  show  a  con 
trary  intention,  the  property  will  not  pass  until  the  chattel  is  com- 
pleted.^^ It  is  also  within  the  principle  of  this  rule  that,  if  the 
goods  are  to  be  paid  for  on  delivery  at  a  particular  place,  the  prop- 
erty will  not  pass  until  delivery,^^  unless  a  contrary  intention  is  ex- 
pressed ^^  or  is  inferable.^*  But  the  fact  that  something  is  to  be 
done  to  the  goods  by  the  seller  after  delivery  will  not  prevent  the 
property  from  passing." 
Rule  2. 

Blackburn  states  the  second  rule  without  confining  it  to  acts  to 
be  done  by  the  seller,  and  regards  it  as  hastily  adopted  from  the 
civil  law,  where  it  was  a  logical  deduction  from  the  principle  that 
there  could  be  no  sale  until  the  price  was  fixed.^'  But  the  court  of 
exchequer,  in  1863,  reviewed  the  English  authorities,^^  and  con- 
cluded that  the  rule  should  be  modified  by  confining  it  to  acts  to  be 
done  by  the  seller,  thus  bringing  it  within  the  principle  of  the  first 

«o  Keeler  v.  Vandervere,  5  Lans.  313. 

21  Halterline  v.  Rice,  62  Barb.  593;  Pritchett  v.  Jones,  4  Rawle,  260.  As 
to  contracts  for  chattels  to  be  manufactured  by  the  seller,  see  post,  103. 

2  2  Calcutta  &  B.  S.  Nav.  Co.  v.  De  Mattos,  32  Law  J.  Q.  B.  .322,  335,  per 
Cockbum,  C.  J.;  The  Venus,  8  Cranch,  253,  275;  Suit  v.  Woodhall,  113  Mass. 
391;  McNeal  v.  Braun,  53  N.  J.  Law,  617,  23  Atl.  687;  Sneathen  v.  Grubbe, 
88  Pa.  St.  147;  Braddock  Glass  Co.  v.  Irwin,  153  Pa.  St.  440,  25  Atl.  490; 
Devine  v.  Edwards,  101  111.  138. 

«»  Lynch  v.  O'Donnell,  127  Mass.  311. 

24  Weld  V,  Came,  98  Mass.  152;  Terry  v.  Wheeler,  25  N.  Y.  520;  Bethel 
Steam-Mill  Co.  v.  Brown,  57  Me.  9,  18;  LIngham  v.  Eggleston,  27  Mich.  324, 
329;    Rail  v.  Little  Falls  Lumber  Co.,  47  Minn.  422,  50  N.  W.  471. 

2B  Hammond  v.  Anderson,  1  Bos.  &  P.  (N.  R.)  69;  Greaves  v.  Hepke,  2  Barn. 
&  Aid.  131;  Mount  Hope  Iron  Co.  v.  Buffinton,  103  Mass.  62;  Morrow  v. 
Reed,  30  Wis.  81. 

2  8  Blackb.  Sales,  175. 

2T  Hanson  v.  Meyer,  6  East,  614;  Zagury  v.  Fumell,  2  Camp.  240;  Withers 
V.  Lyss.  4  Camp.  237;  Simmons  v.  Swift,  5  Bam.  &  G.  857;  Logan  v.  Le 
Mesurier,  6  Moore,  P.  0.  116. 


88  EFFECT    OF   THE    CONTRACT   IN    PASSING    THE    PROPERTY.       [Ch.   3 

rule."  Such  a  modification  appears  to  rest  upon  sound  principle; 
for,  as  Blackburn  observes,  there  is  little  reason  in  supposing  it  to 
be  the  intention  of  the  parties  to  render  beneficial  to  the  buyer  the 
delay  of  an  act  in  which  he  is  to  concur.  The  rule  is  generally 
laid  down  in  the  United  States  without  qualification,''"  though 
it  is  sometimes  confined  to  acts  to  be  done  by  the  seller  or  by 
the  seller  in  connection  with  the  buyer."*  If,  however,  the  goods 
are  actually  delivered,  this  shows  an  intention  to  complete  the  sale; 
and  in  such  case  a  provision  that  they  are  to  be  weighed  or  meas- 
ured will  not  prevent  the  property  from  passing.'^  If  they  have 
been  weighed  or  measured,  the  mere  arithmetical  calculation  of 
the  price  is  immaterial." 

2  8  Tiirley  v.  Bates,  2  Hurl.  &  C.  200.  33  Law  J.  Exch.  43;  Chalm.  Sale,  p. 
31.     The  point  was  not  necessary  to  the  decision  of  Turley  v.  Bates. 

2»  Macomber  v.  Parker,  13  Pick.  175,  183;  Riddle  v.  Varnum,  20  Pick.  280; 
Barnard  v.  I'oor,  21  Pick.  378;  Sherwin  v.  Mudge,  127  Mass.  547;  Smart  v. 
Batchelder,  57  N.  H.  140;  Nesbit  v.  Burry,  25  Pa.  St.  208;  Nicholson  v.  Tay- 
lor, 31  Pa.  St.  128;  Frost  v.  Woodruff,  54  111.  155;  Rosenthal  v.  Kahn,  19  Or. 
571,  24  Pac.  989. 

30  Elgee  Cotton  Cases,  22  Wall.  180,  188,  et  seq.;  Olyphant  v.  Baker,  5  Denlo, 
379,  381;  Kein  v.  Tupper,  52  N.  Y.  550;  Russell  v.  Carrington,  42  N.  Y.  118, 
124;  Lingham  v.  Eggleston,  27  Mich.  324;  Boswell  v.  Green,  25  N.  J.  Law, 
390,  398;  Haxall  v.  Willis,  15  Grat.  434,  442;  McClung  v.  Kelley,  21  Iowa, 
508,  511;   King  v.  Jarman,  35  Ark.  190. 

81  Macomber  v.  Parker,  13  Pick.  175,  183;  Riddle  v.  Varnum,  20  Pick.  280; 
Odell  V.  Boston  &  M.  R.  R.,  109  Mass.  50;  Burrows  v.  Whittaker,  71  N.  Y. 
291;  Boswell  v.  Green,  25  N.  J.  Law.  390;  Scott  v.  Wells,  6  Watts  &  S.  357; 
Leonard  v.  Davis,  1  Black,  476,  483;  Upson  v.  Holmes,  51  Conn.  500;  Bald- 
win V.  Doubleday,  59  Vt  7,  8  AU.  576;  Haxall  v.  Willis,  15  Grat.  434,  445; 
Shealy  v.  Edwards,  73  Ala.  175;  CunniuKham  v.  Asbbrook,  20  Mo.  553; 
Morrow  v.  Reed,  30  Wis.  81;  Foster  v.  Magill,  119  111.  75,  8  N.  E.  771;  Sedg- 
wick V.  Cottingham,  54  Iowa,  512,  6  N.  W.  738;   King  v.  Jarman,  35  Ark,  190. 

«2  Tansley  y.  Turner,  2  Bing.  N.  C.  151;  Bradley  v.  Wheeler,  44  N.  Y.  495. 


€h.   3]  CONDITIONAL   SALE    ACCOMPANIED   BY    DELIVERY.  89 


CONDITIONAL  SALE  ACCOMPANIED  BY  DELIVERY. 

45.  Where  the  buyer  is  by  the  contract  bound  to  do 
something  as  a  condition,  either  precedent  or  concurrent, 
on  -wrhich  the  passing  of  the  property  depends,  the  prop- 
erty ■will  not  pass  until  the  condition  be  fulfilled,  even 
though  the  goods  have  been  actually  delivered  into  the 
possession  of  the  buyer. 

The  commonest  condition  precedent  to  the  passing  of  the  property 
is  the  payment  of  the  price.  Such  a  condition  is  frequently  ex- 
pressed,^^ as  where  goods  are  sold  upon  the  installment  plan;^* 
and  it  may  be  implied  from  the  circumstances,  as  where  goods  are 
ordered  to  be  sent  by  the  seller,  to  be  paid  for  on  delivery,  either  in 
cash  or  by  note  or  acceptance.^  ^  If  the  goods  are  delivered  without 
payment,  the  presumption  is  that  the  condition  is  waived,  or  that 
none  originally  existed.^®  But  this  presumption  may  be  rebutted 
by  evidence  of  the  acts  or  declarations  of  the  parties,  or  of  other 
facts,  tending  to  show  an  intention  to  assert  the  condition.'''  If 
the  sale  is  conditional,  no  title  passes  to  the  buyer;  and,  where  the 

«8  Mires  v.  Solebay,  2  Mod.  243. 

8  4  Ex  parte  Crawcour,  9  Ch.  Div.  419.  See  cases  cited  in  notes  39  and  40, 
post. 

SB  Bishop  V.  Shillito,  2  Barn.  &  Aid.  329,  note  a;  Brandt  v.  Bowlby.  2 
Barn.  &  Adol.  932.  And  see  cases  cited  in  note  11,  supra,  and  notes  36  and 
37,  post. 

8  8  Smith  V.  Dennie,  6  Piclf.  262;  Farlow  v.  Ellis,  15  Gray,  229;  Upton  v. 
Sturbridge  Cotton  Mills,  111  Mass.  446;  Wigton  v.  Bowley,  130  Mass.  252; 
Peabody  v.  Maguire,  79  Me.  572,  585,  12  Atl.  630;  Paul  v.  Reed,  52  N.  H. 
136;  Ward  v.  Shaw,  7  Wend.  404;  Smith  v.  Lynes,  5  N.  Y.  41;  Parker  v. 
Baxter.  86  N.  Y.  586;  Cole  v.  Ben-y,  42  N.  J.  Law,  308;  Bowen  v.  Burk,  13 
Pa.  St.  146;  Mackaness  v.  Long,  85  Pa.  St.  158;  Thompson  v.  Wedge,  50  Wis. 
642,  7  N.  W.  560;  Fishback  v.  Van  Dusen,  33  Minn.  Ill,  22  N.  W.  244; 
Warder,  Mitchell  &  Co.  v.  Hoover,  51  Iowa,  491,  1  N.  W.  795. 

«7  Tyler  v.  Freeman,  3  Cush.  261;  Whitney  v.  Eaton,  15  Gray,  225;  Farlow 
V.  Ellis,  15  Gray,  229;  Peabody  v.  Magnire,  79  Me.  572,  585,  12  Atl.  630; 
Langd.  Gas.  Sales,  1026;  and  cases  cited  in  last  note. 


90  EFFECT    OF   THE    CONTRACT    IN    PASSINQ   THE    PROPERTY.       [Ch.  3 

question  is  unaffected  by  statute,^*  none  can  be  acquired  by  his 
creditors,"'*  or  by  bona  fide  purchasers  from  him.''" 

But,  although  the  property  does  not  pass,  the  buyer  acquires  a 
defeasible  interest,  which  before  breach  of  condition  he  may  sell,*^ 
and  which  is  subject  to  attachment  by  his  creditors,*^  and  which 
upon  the  performance  of  the  condition  becomes  perfect.  And,  like 
other  bailees,  he  may  maintain  an  action  of  trover  against  one  who 
wrongfully  invades  his  possession.*^      The  seller  also  may  sell  or 

88  Under  statutes  enacted  in  many  states  making  chattel  mortgages  void 
against  creditors  and  purcliasers  from  the  mortgagor  unless  filed  or  recordetl, 
conditional  sales  are  frequently  held  to  be  chattel  moi-tgages.  llervey  v. 
Rhode  Island  Locomotive  Works,  93  U.  S.  664;  Murch  v.  Wright,  46  lU.  487; 
Heryford  v.  Davis,  102  U.  S.  235.  See  Benj.  Sales  (Corbin's  6th  Am.  Ed.) 
§  452  et  seq.  In  some  states,  also,  statutes  have  been  enacted  providing  that 
conditional  sales,  where  possession  is  delivered  and  the  property  reserved  by 
the  seller  to  secure  the  price,  shall  be  void  against  creditors  of  the  buyer 
or  purchasers  from  him  unless  filed  or  recorded.  See  Benj.  Sales  (Corbin's 
6th  Am.  Ed.)  §  461. 

3  9  Hussey  v.  Thornton,  4  Mass.  404;  Barrett  v.  Prltchard,  2  Pick.  512; 
Forbes  v.  Marsh,  15  Conn.  3S4;  Mack  v.  Story,  57  Conn.  407,  18  Atl.  707; 
Armington  v.  Houston,  38  Vt.  448;  Rogers  v.  Whitehouse,  71  Me.  222;  Strong 
v.  Taylor,  2  Hill,  326;  Herring  v.  Hoppock,  15  N.  Y.  409;  Goodell  v.  Fair- 
brother,  12  R.  I.  233;  Call  v.  Seymour,  40  Ohio  St  670;  Dewes  Brewery  Co. 
V.  Men-itt,  82  Mich.  198,  46  N.  W.  379;  City  Nat.  Bank  v.  Tufts,  63  Tex.  113. 

40  Harkness  v.  Russell,  118  U.  S.  663,  7  Sup.  Ct.  51;  Coggill  v.  Hartford  & 
N.  H.  R.  Co.,  3  Gray,  545;  Hirschorn  v.  Canney,  98  Mass.  149;  Zuchtmann 
V.  Roberts,  109  Mass.  53;  Ballard  v.  Burgett,  40  N.  Y.  314;  Weeks  v.  Pike, 
60  N.  H.  447;  Cole  v.  Berry,  42  N.  J.  Law,  308;  Sanders  v.  Keber,  28  Ohio 
St.  630;  Bradshaw  v.  Warner,  54  Ind.  58;  Sumner  v.  Cottey,  71  Mo.  121; 
Fairbanks  v.  Eureka  Co.,  67  Ala.  109;  Sumner  v.  Woods,  Id.  139;  National 
Bank  of  Commerce  v.  Chicago,  B.  &  N.  R.  Co.,  44  Minn.  224,  46  N.  W.  342, 
560;  McComb  v.  Donald's  Adm'r,  82  Va.  903,  5  S.  E.  558;  Standard  Imp.  Co. 
V.  Parlin  &  Orendorff  Co.  (Kan.  Sup.)  33  Pac.  360.  A  different  rule,  however, 
appears  to  prevail  in  Pennsylvania,  Illinois,  Kentucky,  and  Maryland.  See 
Benj.  Sales  (Corb.  6th  Am.  Ed.)  §  446  et  seq. 

*i  Day  V.  Bassett,  102  Mass.  445;  Chase  v.  Ingalls,  122  Mass.  381;  Car- 
penter v.  Scott,  13  R.  I.  477;  Nutting  v.  Nutting,  63  N.  H.  221.  See  Win- 
chester v.  King,  46  Mich.  102,  8  N.  W.  722. 

*2  Newhall  v.  Kingsbury,  131  Mass.  445;  Denny  v.  Eddy,  22  Pick.  535; 
Hurd  V.  Fleming,  34  Vt  169.  But  the  seller  may  retain  the  right  to  posses- 
sion notwithstanding  deliveiy.  Nichols  v.  Ashton,  155  Mass.  205,  29  N.  E. 
519. 

*8  Harrington  v.  King,  121  Mass.  269. 


Ch.   3]  SALE   ON    TRIAL    OR    APPROVAL.  91 

mortgage  his  interest,  and  it  may  be  attaclied  by  his  creditors.** 
The  property  being  in  the  seller,  the  risk  of  loss  remains  in  him.*' 
Upon  breach  of  the  condition,  the  right  of  possession  revests  in 
the  seller,*'  and  he  may  replevy  the  goods  or  sue  to  recover  their 
value.*^  It  is  generally  held  that  he  need  not,  in  a  suit  to  recover 
the  value,  allow  for  partial  payments,  or,  in  replevin,  refund  the 
same,*^  and  that,  although  the  seller  reclaims  the  goods,  the  buyer 
cannot  recover  for  installments  paid;*®  but  some  courts,  upon  equi- 
table principles,  require  the  seller  to  account  for  payments  re- 
ceived.'** 

SALE  ON  TRIAL  OR  APPROVAL. 

46.  Where  goods  are  delivered  to  the  buyer  on  trial  or 
on  approval,  the  property  therein  passes  to  him — 

(a)  When  he  signifies  his  approval;  or 

(b)  On  the  expiration  of  the  time  limited  for  trial;  or 

(c)  If  no  time  is  limited,  on  the  expiration  of  a  rea- 

sonable time. 

47.  SALE  OR  RETURN— Where  goods  are  delivered  to 
the  buyer  -with  the  understanding  that  the  property  is  ta 
pass  to  him  immediately,  but  that  he  may  afterwards  re- 

44  Burnell  v.  Marvin,  44  Vt.  277;  Everett  v.  Hall,  67  Me.  497;  McMillan 
V.  Larned,  41  Mich.  521,  2  N.  W.  G62. 

*6  Randle  v.  Stone  &  Co.,  77  Ga.  501;  Stone  v.  Waite,  88  Ala.  599,  7  South. 
117;  Swallow  v.  Emery,  111  Mass.  355.  See  Kortlander  v.  Elston,  2  C.  C.  A. 
657,  52  Fed.  180.  Contra,  Tiifts  v.  Griffin,  107  N.  C.  49,  12  S.  E.  68;  Burnley 
V.  Tufts,  66  Miss.  49,  5  South.  627;  Tufts  v.  Wynne,  45  Mo.  App.  42. 

48  Hubbard  v.  Bliss,  12  Allen,  590. 

47  Hill  V.  Freeman,  3  Cush.  257;  Salomon  v.  Hathaway,  126  Mass.  482; 
Hughes  V.  Kelly,  40  Conn.  148;  Stone  v.  Perry,  60  Me.  48;  Whitney  v.  Me- 
Connell,  29  Mich.  12;  Wiggins  v.  Snow,  89  Mich.  476,  50  N.  W.  991.  But  see 
Wheeler  &  Wilson  INIanuf'g  Co.  v.  Teetzlaff,  53  Wis.  211,  10  N.  W.  155,  where 
a  provision  authorizing  the  seller  on  default  to  take  the  machine  at  his  option 
was  held  to  require  demand. 

48  Angier  v.  Taunton  Paper  Co.,  1  Gray,  621;  Brown  v.  Haynes,  52  Me. 
578;   Duke  v.  Shackleford,  56  Miss.  552;   Fleck  v.  Warner,  25  Kan.  492. 

49  Haviland  v.  Johnson,  7  Daly,  297;   Latham  v.  Sumner,  89  111.  233. 

80  Preston  v.  Whitney,  23  Mich.  260;  Hine  v.  Roberts,  48  Conn.  267;  Guil- 
ford v.  McKinley,  61  Ga.  230;  Third  Nat.  Bank  v.  Armstrong,  25  Minn.  530;. 
Snook  V.  Raglan,  89  Ga.  251,  15  S.  B.  364. 


92  EFFECT   OF   THE    CONTRACT    IN    PASSING    THE    PROPERTY.       [Ch.  3 

turn  the  goods  if  he  sees  fit,  the  property  passes  to  the 
buyer,  and,  in  case  of  a  return  of  the  goods,  revests  in 
the  seller. 

Conditions  postponing  the  transfer  of  the  property  may  exist  for 
the  benefit  of  the  buyer  as  well  as  of  the  seller.  Instances  of  such 
conditions  are  afforded  in  sales  "on  trial"  or  "on  approval."  Such 
a  transaction  amounts  to  a  bailment,  with  the  right  in  the  buyer 
to  convert  the  bailment  into  a  sale,  at  his  option.  In  such  cases 
there  is  no  sale  until  the  buyer  signifies  to  the  seller  his  approval  or 
acceptance,  or  does  some  act  adopting  the  transaction  as  a  sale."^ 
If  he  does  not  signify  his  approval  or  acceptance,  but  retains  the 
goods  without  giving  notice  of  rejection,  it  is  generally  held  that  the 
property  passes  on  the  expiration  of  the  time  limited  for  trial, "' 
or,  if  no  time  is  limited,  on  the  expiration  of  a  reasonable  time,"' 
although  some  cases  hold  that  failure  to  return  is  merely  evidence 
of  intention  on  the  buyer's  part  to  exercise  his  right  to  purchase."* 

Sale  or  return. 

A  bailment  with  an  option  in  the  bailee  to  buy  is,  however,  es- 
sentially different  from  a  sale  with  the  right  of  return.  It  is,  of 
course,  competent  for  the  parties  to  agree  that  the  property  in  the 
goods  shall  pass  to  the  buyer  on  delivery,  and  that,  if  he  does  not 
approve  of  the  goods,  he  may  return  them.  In  the  latter  case  the 
transaction  is  a  sale  defeasible  on  the  fulfillment  of  a  condition  sub- 

Bi  Swain  v.  Shepherd,  1  Moody  &  R.  223;  Elphick  v.  Barnes,  5  C.  P.  Div. 
321,  32G;  Hunt  v.  Wyman,  100  Mass.  198;  Pitts'  Sons  Manuf  g  Co.  v.  Poor, 
7  111.  App.  24;  Mowbray  v.  Cady,  40  Iowa,  604;  Pierce  v.  Cooley,  56  Mich. 
552,  23  N.  W.  310. 

62  Humphries  v.  Caivalho,  16  East,  4.t;  Elphick  v.  Barnes,  5  C.  P.  Div.  321; 
Waters  Heater  Co.  v.  Mansfield,  48  Vt.  378;  Butler  v.  School  Dist.,  149  Pa. 
SL  3.11.  24  All.  308;  Spiclder  v.  Marsh,  36  Md.  222;  Delamater  v.  Chappoll, 
48  Md.  244,  2.53;  Prairie  Farmer  Co.  v.  Taylor,  60  111.  440;  Aultman  v.  Theirer, 
34  Iowa,  272.  A  sale  on  condition  that  the  buyer  may  return  on  a  certain 
continj?ency  becomes  absolute  if  he  disables  himself  from  performing  the  con- 
dition by  mortgaging  the  goods.    Lynch  v.  Willford  (Minn.)  59  N.  W.  311. 

B3  Moss  V.  Sweet,  16  Q.  B.  493,  20  Law  J.  Q.  B.  167;  Dewey  v.  Erie  Bor- 
ough, 14  Pa.  St.  211. 

»*  Hunt  V.  Wyman,  100  Mass.  198,  per  Wells,  .7.;  Kahn  v.  Klabunde,  50 
Wis.  235,  6  N.  W.  888.    See  Sturm  v.  Boker,  150  U.  S.  312,  331,  14  Sup.  Ct.  99. 


Ch.   3]  SALE    ON    TRIAL    OR    APPROVAL,  93 

sequent."  The  property  vests  in  the  buyer,  and,  upon  the  ex- 
ercise of  his  right  of  return,  it  revests  in  the  seller.  In  case  the 
buyer  disables  himself  from  performiug,  the  sale  becomes  absolute. 
The  difficulty  lies  in  ascertaining  the  intention,  and  different  con- 
structions would  probably  be  placed  upon  the  same  transaction  by 
different  courts.'*"  Thus,  in  several  cases  where  goods  were  de- 
livered to  the  buyer  upon  his  agreement  to  return  them  on  a  specified 
day,  or  else  to  pay  for  them,  the  transaction  has  been  construed  as 
an  executed  sale  with  the  right  of  return;  ^'^  but  it  is  perhaps  open 
to  doubt  whether  it  would  not  be  more  in  accordance  with  the  in- 
tention of  the  parties  to  construe  such  a  transaction  as  a  bail 
ment  with  the  right  to  purchase.  The  terms  "sale  on  trial,"  "sale 
on  approval,"  and  "sale  or  return"  are  generally  used  without  much 
distinction;  "^  but  the  term  "sale  or  return"  is  in  this  country  often 
confined  to  sales  defeasible  upon  the  return  of  the  goods,  in  dis- 
tinction to  the  terms  "sale  on  trial"  and  "sale  on  approval,"  which 
are  confined  to  cases  in  which  the  approval  of  the  buyer  is  a  condi- 
tion precedent  to  the  transfer  of  the  property;  "^^  and  the  distinction 
is  a  convenient  one. 

6  6  Ray  V.  Thompson,  12  Gush.  281;  Schlesinger  v.  Stratton,  9  R.  I.  578, 
580;  Hotchkiss  v.  Higgins,  52  Conn.  205;  Robinson  v.  Fairbanks,  81  Ala. 
132,  1  South.  552.  Cf.  Head  v.  Tattersall,  L.  R,  7  Exch.  7;  Sturm  v.  Boker, 
150  U.  S.  312,  14  Sup.  Ct.  99.    See  Clark,  Cont.  621-624. 

66  Ray  V.  Thompson,  12  Cush.  281. 

67  Dearborn  v.  Turner,  16  Me.  17;  Buswell  v.  Bicknell,  17  Me.  344;  Crocker 
V.  Gullifer,  44  Me.  491,  494;  McKinney  v.  Bradlee,  117  Mass.  321;  Martin 
V.  Adams,  104  Mass.  262. 

68  Cf.  Moss  V.  Sweet,  16  Q.  B.  493,  20  Law  J.  Q.  B.  167;  Kahn  v.  Klabunde, 
50  Wis.  235,  238,  6  N.  W.  888;  Spickler  v.  Marsh,  36  Md.  222;  Benj.  Sales,  § 
595;    Chalm.  Sale,  pp.  29,  32. 

6  9  Cf.  Schlesinger  v.  Stratton,  9  R.  I.  578,  580;  Hotchkiss  v.  Higgins,  52 
Conn.  205;  Robinson  v.  Fairbanks,  81  Ala.  132,  1  South.  552;  Benj.  Sales 
(Bennett's  6th  Am.  Ed.)  pp.  568,  569;   Id.  (Corbin's  Bd.)  p.  796,  note  30. 


94  KFFECT   OF    THE   CONTRACT   IN    PASSING   THE    PROPERTY.      [Ch.  4 


CHAPTER  IV. 

EFFBOT  OF  THE  CONTRACT  IN  PASSING  THE  PROPERTY  (Continued) 
-SALE  OF  CHATTEL  NOT  SPECIFia 

48-49.    In  General. 

50-53.    Subsequent  Appropriation. 

54-56.    Reservation  of  Right  of  Disposal. 


IN  GENERAL. 

48.  Where  the  contract  is  for  the  sale  of  unascertained 
goods,  the  contract  is  executory,  and  no  property  is  thereby 
transferred. 

49.  Where  the  goods  -which  are  the  subject-matter  of  a 
contract  of  sale  are  part  of  a  specific  stock  from  -which 
they  have  not  been  separated,  no  property  passes  until 
separation. 

EXCEPTION— In  some  states  it  is  held  that,  where 
the  goods  sold  are  a  part  of  a  specific  bulk  of  uni- 
form character,  the  property  in  an  undi-vided  part 
is  transferred  by  the  contract,  and  -without  sepa- 
ration, if  such  be  the  intention  of  the  parties. 

The  rule  that  the  parties  must  be  agreed  on  the  specific  goods 
which  are  to  be  the  subject  of  the  sale  is  founded,  as  Blackburn 
says,  on  the  very  nature  of  things;  for,  until  the  parties  are  agreed 
on  the  specific  goods,  the  contract  can  be  no  more  than  a  contract 
to  supply  goods  answering  a  particular  description,  and  since  the 
seller  would  fulfill  his  contract  by  furnishing  any  goods  answering 
the  description,  and  the  buyer  could  not  object  to  them,  provided 
they  answered  the  description,  it  is  clear  that  there  can  be  no 
intention  to  transfer  the  property  in  any  particular  goods.* 
Where  Goods  are  Part  of  Specific  Stock. 

But,  where  the  goods  are  so  far  ascertained  that  the  parties  have 
agreed  to  take  them  from  a  particular  stock  owned  by  the  seller, 

1  Blackb.  Sales,  124;   Benj.  Sales,  352;  2  Kent,  Comm.  49flL 


Ch.   4]  IN   GENERAL.  95 

a  different  qnestion  may  arise.  If  the  goods  are  part  of  a  specific 
stock,  consisting  of  units  of  varying  quality  or  value,  as  a  number 
of  sheep  out  of  a  flock,  it  is  clear  that  a  selection  must  take  place 
before  the  property  in  any  particular  units  can  pass.  But  if  the 
goods  are  part  of  a  uniform  mass,  such  as  grain  or  oil  or  coal,  it  is 
possible  that  the  parties  may  intend  that  the  property  in  an  un- 
divided part  shall  pass,  the  parties  becoming  quasi  tenants  in  com- 
mon of  the  mass;  and  such  an  intention  may  be  inferable  although 
the  contract  is  not  in  terms  for  the  sale  of  an  undivided  interest,  as 
a  half  or  a  third,  but  where  it  is  for  the  sale  of  a  certain  number 
of  bushels  or  gallons  or  tons  of  the  mass  of  grain  or  oil  or  coal. 

In  England  no  such  distinction  is  recognized,  and  the  general 
rule  is  applied,  even  though  the  mass  be  of  uniform  quality  and 
value.^  But  in  the  United  States,  while  many  cases  maintain 
strictly  the  older  rule,^  others  hold  that  if  the  sale  be  of  a  certain 
quantity,  by  weight  or  measure  or  count,  its  separation  from  a 
specific,  uniform  mass  is  not  necessary  to  pass  the  property,  when 
the  intention  to  do  so  is  otherwise  manifested.*     Upon  the  ques- 

2  Wallace  v.  Breeds,  13  East,  522;  Austen  v.  Craven,  4  Taunt.  644;  White 
V.  Wilks,  5  Taunt.  176;  Busk  v.  Davis,  2  Maule  &  S.  397;  Shepley  v.  Davis, 
5  Taunt.  617;  Gillett  v.  Hill,  2  Cromp.  &  M.  530;  Gabarron  v.  Kreeft,  L.  R. 
10  Exch.  274.  Whitehouse  v.  Frost,  12  East,  614,  may,  perhaps,  rest  upon 
this  distinction.  See  Busk  v.  Davis,  2  Maule  &  S.  397.  But  the  case  has 
been  much  questioned  in  England.  Benj.  Sales,  §  354.  It  is,  however,  fre- 
quently cited  as  an  authority  in  the  American  cases  v^'hich  recognize  the 
distinction. 

»  Woods  V.  McGee,  7  Ohio,  127  (but  see  Newhall  v.  Langdon,  89  Ohio  St. 
87);  Scudder  v.  Worcester,  11  Gush.  573;  Ropes  v.  Lane,  9  Allen,  502;  Mes- 
ser  V.  Woodman,  22  N,  H.  172;  Reeder  v.  Machen,  57  Md.  56;  Ferguson  v. 
Louisville  City  Nat.  Bank,  14  Bush,  555;  Courtright  v.  Leonard,  11  Iowa,  32; 
McLaughlin  v.  Piatti,  27  Cal.  451;  Dunlap  v.  Berry,  4  Scam.  327;  Warten  v. 
Strane,  82  Ala.  311,  8  South.  231;  Commercial  Nat.  Bank  v.  Gillette,  90  Ind. 
268.  See,  also,  Golden  v.  Ogden,  15  Pa.  St,  528;  Haldeman  v.  Duncan,  51 
Pa.  St.  66.  Some  cases  cited  as  authorities  on  this  point,  perhaps,  rest  on 
the  ground  that  the  mass  was  not  uniform.  Woods  v.  McGee,  supra;  Hutch- 
inson V.  Hunter,  7  Pa.  St.  140;  McLaughlin  v.  Piatti,  27  Cal.  451  (see  Horr 
V.  Barker,  8  Cal.  003,  11  Cal.  393).    See  Stone  v.  Peacock,  35  Me.  385,  388. 

*  Kimberly  v.  Patchin,  19  N.  Y.  330;  Russell  v.  Carrington,  42  N.  Y.  118; 
Pleasants  v.  Pendleton,  6  Rand.  (Va.)  473;  HurCC  v.  Hires,  40  N.  J.  Law, 
581;  Chapman  v.  Shepard,  39  Conn.  413;  Waldron  v.  Chase,  37  Me.  414  (but 
Bee  Morrison  v.  Dlngley,  03  Me.  553);    Newhall  v.  Langdon,  39  Ohio  St.  87: 


96  EFFECT   OF   THE   CONTRACT   IN    PASSING   THE   PROPERTY.       [Ch.  4 

tion  of  intention,  the  payment  of  the  price,  and  particularly  the 
undortakin<j  of  the  seller  to  hold  as  bailee  of  the  buyer,  are  material; 
and  it  has  also  been  held  that  the  delivery  of  the  mass  to  the 
buyer,  with  power  to  make  the  separation,  is  evidence  of  an  inten- 
tion to  pass  the  property."  While,  on  principle,  there  is  no  reason 
why  the  intention  of  the  parties  to  transfer  an  undivided  interest 
should  not  be  given  full  effect,  in  many  of  the  cases  where  such  an 
interest  was  held  to  have  passed,  it  is  very  doubtful  whether  any 
such  intention  existed." 
Elevator  Cases. 

Analogous  to  the  cases  last  mentioned  are  the  so-called  "Ele- 
vator Cases,"  which  hold  that  grain  delivered  by  the  owners  at  an 
elevator,  and  stored  in  a  common  mass,  is  owned  by  the  depositors 
as  tenants  in  common,  and  that  the  interest  of  any  one  of  them  may 
be  transferred  without  separation.^  There  is,  however,  in  the  Ele- 
vator Cases,  this  essential  distinction:  that  the  tenancy  in  common 
is  created  by  the  original  deposit  and  mixture  of  goods,  so  that  in 
case  of  a  sale  by  one  owner  there  can  be  no  question  that  the  in- 
tention is  to  transfer  the  property  in  an  undivided  interest 

Carpenter  v.  Graham,  42  Mich.  191,  3  N.  W.  974;  Young  v.  Miles,  20  Wis. 
&46;  Horr  v.  Barker,  8  Cal.  603,  11  Cal.  393;  Kingman  v.  Holmquist,  3(> 
Kan.  735,  14  Pae.  IGS;  Nash  v.  Brewster,  39  Minn.  530,  41  N.  W.  105;  Mac- 
kellar  v.  Pillsbury,  48  Minn.  396,  51  N.  W.  222;  Phillips  v.  Ocmulgee  Mills, 
55  Ga.  633;  Watts  v.  Hendry,  13  Fla.  523.  Where  the  contract  was  for 
"merchantable  brick."  to  be  sorted  from  the  kiln  by  the  buyer,  the  title  did 
not  pass;  it  being  impossible  to  determine  either  \vhat  brick,  or  what  rel- 
ative portion  of  the  kiln,  were  sold.  Kimborly  v.  Patchin,  supra,  distin- 
guished on  the  ground  that  it  did  not  appear  that  the  brick  were  uniform 
and  of  equal  value.    Anderson  v.  Crisp,  5  Wash.  178,  31  Pac.  638. 

0  Page  V.  Caiijenter,  10  N.  H.  77;  Lamprey  v.  Sargent,  .'>8  N.  H.  241;  Weld 
V.  Cutler,  2  Gray,  195.  But  see  Kimberly  v.  Patchiu,  19  N.  Y.  33U,  per  Com- 
stock,  J.,  commenting  on  Crofoot  v.  Bennett,  2  N.  Y.  258. 

«  Pleasants  v.  Pendleton,  6  Rand.  (Va.)  473,  a  leading  case,  of  which  it 
was  observed  by  Grimke,  J.,  In  Woods  v.  McGee,  7  Ohio,  127,  that  "it  was 
a  hard  case,  and  hard  cases  make  shipwreck  of  principles." 

7  Gushing  v.  Breed,  14  Allen,  376;  Keeler  v.  Goodwin,  111  Mass.  490;  Dole 
V.  Olmstead,  36  111.  150,  41  111.  344;  Warren  v.  MliUken,  57  Me.  97. 


Ch.  4]  SUBSEQUENT    APPROPBIATION.  97 

SUBSEQUENT  APPROPRIATION. 

50.  When  there  is  a  contract  for  the  sale  Ox  ■unascer- 
tained goods,  no  property  is  transferred  until  there  has 
been  an  appropriation  of  goods  to  the  contract, — that  is, 
a  designation  by  the  seller  and  buyer  of  the  goods  which 
are  to  be  the  subject-matter  of  the  sale,  -with  the  inten- 
tion of  passing  the  property  in  them ;  and,  vsrhen  goods  are 
so  appropriated  to  the  contract,  the  property  in  them  is 
transferred. 

61.  HOW  EFFECTED— Appropriation  to  the  contract 
can  only  take  place  by  the  concurrence  of  buyer  and 
seller,  unless  one  of  them  has  been  authorized  by  the 
other  to  act  on  behalf  of  both. 

52.  BY  ACT  OF  ONE  PARTY— Appropriation  by  the 
act  of  one  of  the  parties  takes  place  'when,  in  pursuance 
of  express  or  implied  authority  conferred  by  the  other, 
he  does  an  act  in  respect  to  the  goods  "which,  from  its 
nature,  he  cannot  do  until  the  goods  are  appropriated. 

53.  BY  DELIVERY  TO  CARRIER— An  appropriation 
takes  place  by  the  act  of  the  seller  w^hen,  in  pursuance  of 
the  contract,  he  delivers  goods  to  a  carrier  for  transmis- 
sion to  the  buyer,  and  does  not  reserve  the  right  of  dis- 
posal. 

Although  no  property  can  pass  until  the  goods  have  been  ascer- 
tained, it  does  not  necessarily  follow  that  because  they  have  been 
ascertained  the  property  passes.  The  transfer  of  the  property,  in 
such  case,  as  well  as  in  the  case  of  a  contract  for  the  sale  of  goods 
originally  specific,  depends  solely  on  the  intention  of  the  parties, 
and.  while  in  both  cases  the  presumption  is  that  the  parties  intend 
the  property  to  pass,®  it  may  well  happen  that,  though  they  subse- 
quently agree  upon  the  specific  goods,  they  intend  that  the  property 
shall  remain  in  the  seller  until  the  performance  of  a  condition.  To 
effect  a  transfer  of  the  property,  it  is  necessary,  not  only  that  the 

8  Blackb.  Sales  (2d  Ed.)  128. 

SALES — 7 


98  EFFECT    OF    THE    CONTRACT    IN    PASSING    THE    PROPERTY.       [Ch.  4 

goods  be  ascertained,  but  that  they  be  appropriated  to  the  contract. 
The  term  "appropriation  to  the  contract,"  as  has  been  observed  by 
Chalmers,  J.,"  is  unfortunate;  for  it  sometimes  moans  simply 
that  the  goods  have  been  specified  as  the  subject-matter  of  the  con- 
tract, so  that  the  seller  would  brc;ik  it  by  delivering  any  other 
goods,  though  the  property  still  remains  in  him,  while,  on  the  other 
hand,  it  may,  and  usually  does,  mean  that  the  goods  have  been 
designated  with  the  intention  of  passing  the  property  in  them  to 
the  buyer, — that  is,  finally  appropriated  to  the  contract,  so  as  to 
pass  the  property  in  them.^"  For  the  sake  of  clearness,  the  term 
will  here  be  confined  to  the  latter  meaning. 
How  Effected, 

An  appropriation  can  only  take  place  by  the  assent  of  both  par- 
ties,^^  but  the  assent  may  be  implied  as  well  as  express;"  and  it 
may  be  given  by  either  party  after  ^^  or  before  a  selection  by  the 
other.  When  the  goods  are  afterwards  selected  by  the  buyer  with 
the  assent  of  the  seller,  or,  if  selected  by  the  seller,  are  approved 
by  the  buyer,  no  difficulty  arises.^*  As  was  said  by  Holroyd,  J., 
•'The  selection  of  the  goods  by  the  one  party,  and  the  adoption  of 
the  act  by  the  other,  converts  that  which  was  before  a  mere  agree- 
ment to  sell  into  an  actual  sale,  and  the  property  thereby  passes."  *" 
Appropriation  by  Act  of  Seller. 

The  difficulty  arises  when  the  seller  makes  the  selection  pursuant 
to  authority  derived  from  the  buyer;  and  it  is  often  a  nice  question 
•of  law  whether  the  acts  done  by  the  seller  merely  express  a  rev- 
■ocable  intention  to  appropriate  certain  goods  to  the  contract,  or 

»  Chalm.  Sale,  32. 

10  Wait  v.  Baker,  2-Exch.  1,  8,  per  Parke,  B. 

11  Campbell  v.  Mersey  Docks  &  Harbour  Board,  14  C.  B.  (N.  S.)  412,  per 
Willes,  J.;  Godts  v.  Rose,  17  C.  B.  229,  per  Willes,  J.;  Jenner  v.  Saiitb,  L. 
R.  4  C.  P.  270,  per  Brett,  J.;  Reeder  v.  Macben,  57  Md.  56;  Home  Ins.  Co. 
T.  Heck,  65  111.  111. 

12  Campbell  v.  Mersey  Docks  &  llaibour  Board.  14  C.  B.  (N.  S.)  412,  per 
Erie,  J.;  Alexander  v.  Gardner,  1  Bing.  N.  C  671;  Sparkes  v.  Marsball,  2 
Biug.  N.  C.  7G1. 

13  Robde  V.  Thwaltes,  6  Barn.  &  O.  388. 
!♦  Benj.  Sales,  §  358. 

16  Robde  v.  Thwaites,  G  Barn.  &  C.  388.  See,  also,  Hatch  v.  Oil  Co.,  100 
U.  S.  124,  136. 


Ch.  4]  SUBSEQUENT    ArPROPRIATIOX.  99 

whether  they  show  an  irrevocable  determination  of  a  right  of  elec- 
tion.*' Authority  to  make  the  appropriation  is  generally  con- 
ferred upon  the  seller  by  implication  upon  the  ground  that  he  is 
by  the  contract  authorized  or  required  to  do  an  act  in  respect  to  the 
goods  on  behalf  of  the  buyer  which,  from  the  nature  of  the  act, 
he  cannot  do  until  the  goods  are  appropriated.*^  Until  he  per- 
forms the  act,  he  may  change  his  mind  as  often  as  he  will  as  to  what 
goods  he  will  select,  for  the  contract  gives  him  till  then  to  make  the 
choice;  but,  when  once  he  has  performed  the  act,  his  election  is 
determined,  and  the  property  in  the  goods  passes  to  the  buyer.** 
Thus  where,  by  the  contract,  the  seller  is  to  sell  a  certain  number 
of  barrels  of  flour,  and  to  load  them  into  the  wagon  or  vessel  of  the 
buyer,  who  is  to  fetch  them  away,  the  seller  has  implied  authority 
to  appropriate  the  goods,  and  he  may  select  any  goods  he  pleases, 
provided  they  conform  to  the  contract,  and  he  may  select  first  one 
lot,  and  then  another,  without  affecting  the  property  in  them;  bu*^^ 
when  once  he  loads  the  barrels  into  the  buyer's  wagon  or  vessel 
the  appropriation  is  final,  and  the  property  passes.**  So  when 
the  seller  is  to  deliver  the  goods  at  a  place  designated  by  the  con- 
tract, the  property  passes  upon  the  delivery.** 
Appropriation  by  Delivery  to  Carrier. 

The  commonest  form  of  appropriation  by  act  of  the  seller  is  by 
the  delivery  of  the  goods  to  a  carrier  as  agent  for  the  buyer.     Thus 

i«  Chalm.  Sale,  32. 

IT  Langd.  Cas.  Sales,  1028:  Smith  v.  Edwards,  156  Mass.  221,  30  N.  E. 
1017,  per  Holmes,  J. 

18  Blackb.  Sales,  128;   Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295. 

19  Benj.  Sales,  §  359;  Gill  v.  Benjamin,  64  Wis.  362,  25  N.  W.  445  (to  be 
delivered  over  the  rail  of  the  buyer's  vessel).  A  foreign  merchant  contracted 
for  several  cargoes  of  lumber,  to  be  delivered,  seasoned,  f.  o.  b.,  within 
seven  months  of  May  1st;  certain  advances  to  be  made  before  June  1st. 
The  advances  were  made,  and  the  first  cargo  was  prepared  by  August,  piled 
by  itself,  and  the  buyer  notified.  The  buyer  had  difficulty  in  chartering  ships, 
and  the  lumber  was  burned.  Held,  that  the  title  had  not  passed.  Schreyer 
V.  Kimball  Lumber  Co.,  4  C.  C.  A.  547,  54  Fed.  653. 

2  0  National  Bank  v.  Dayton,  102  U.  S.  59;  Hyde  v.  Lathrop,  2  Abb.  Dec. 
436;  Claflin  v.  Boston  &  L.  R.  Co.,  7  Allen,  341;  Veazie  v.  Holmes,  40  Me. 
69;  Bloyd  v.  Pollocks,  27  W.  Va.  75;  Sedgwick  v.  Cottingham,  54  Iowa, 
512,  6  N.  W.  738. 


100      EFFECT  OF  THE  CONTRACT  IN  PASSING  THE  rBOPERTY.   [Ch.  4 

if  the  buyer  orders  goods  to  be  sent  to  him  at  his  expense,  and  the 
seller  delivers  goods  conformiug  to  the  contract  to  a  carrier  for 
transmission  to  tlie  buyer,  the  appropriation  is  complete  upon  such 
delivery,  provided  that  the  seller  does  not  reserve  the  right  of  dis- 
posal.'^ The  right  to  make  the  appropriation  springs  from  the  au- 
thority to  deliver  to  the  carrier  as  agent  for  the  buyer,  which  is 
equivalent  to  delivery  to  him  personally,  and  such  authority  may 
either  be  conferred  by  the  express  terms  of  the  contract,  or  may  be 
implied  from  the  course  of  trade.  If,  however,  the  seller  is  to  de- 
liver to  the  buyer  at  the  place  of  destination,  delivery  to  the  car- 
rier is  not  delivery  to  him  as  agent  of  the  buyer,  but  as  agent  of  the 
seller,  and  hence  does  not  pass  the  property.''^  Whether  delivery 
to  the  carrier  in  pursuance  of  an  order  to  that  effect  from  the 
buyer,  with  directions  to  collect  the  price  on  delivery  to  the  buyer, 
or,  as  the  transaction  is  usually  designated,  "shipment  C.  O.  D.," 
operates  as  an  appropriation  to  the  contract  is  a  question  on  which 
the  authorities  differ.  On  the  one  hand,  it  is  held,  with  what  ap- 
pears to  be  the  better  reason,  that  in  such  a  case  the  carrier  is  the 

21  Fragano  v.  Long,  4  Barn.  &  C.  219;  Browne  v.  Hare,  4  Hud.  &  N.  822, 
29  Law  J.  Exch.  6;  affirming  3  Hurl.  &  N.  484,  27  Law  J.  Excb.  372;  Tre- 
gelles  V.  Sewell,  7  Hurl.  &  N.  574;  Calcutta  &  B.  S.  Nav.  Co.  v.  De  Mattos, 
32  Law  J.  Q.  B.  322,  328,  per  Blackburn,  J.;  The  Mary  and  Susan,  1  Wheat. 
25;  Blum  v.  The  Caddo,  1  Woods,  64,  Fed.  Cas.  No.  1,573;  Low  v.  Andrews. 
1  Stoiy,  38,  Fed.  Cas.  No.  8,559;  Fenton  v.  Braden,  2  Cranch,  C.  C.  550,  Fed. 
Cas.  No.  4,730;  Finch  v.  Mansfield,  97  Mass.  89;  Merchants'  Nat.  Bank  v. 
Bangs,  102  Mass.  291;  Odell  v.  Boston  &  M.  R.  Co.,  109  Mass.  50;  Frank 
V.  Hoey,  128  Mass.  263;  Smith  v.  Edwards,  156  Mass.  221,  30  N.  E,  1017; 
Torrey  v.  Corliss,  33  Me.  3.33;  Arnold  v.  Prout,  51  N.  H.  587;  Hobart  v. 
Littlefield,  13  R.  I.  341;  Krulder  v.  Ellison,  47  N.  Y,  36;  Bailey  v.  Hudson 
R.  R.  Co.,  49  N.  Y.  70;  Pacific  Iron  Works  v.  Long  Island  R.  Co.,  62  N.  Y. 
272;  Schmertz  v.  Dwyer,  53  Pa.  St.  335;  Kelsea  v.  Ramsey  &  Gore  Manuf'g 
Co.,  55  N.  J.  Law,  320,  26  Atl.  907;  Magruder  v.  Gage,  33  Md.  344;  Watklns 
V.  Paine,  57  Ga.  50;  Pilgreen  v.  State,  71  Ala.  368;  Diversy  v.  Kellogg,  44 
111.  114;  Ellis  V.  Roche,  73  111.  280;  Ranney  v.  Iligby,  4  Wis.  174;  Sarbecker 
V.  State,  65  Wis.  171,  26  N.  W.  541;  Garretson  v.  Selby,  37  Iowa,  529;  Bur- 
ton V.  Baird,  44  Ark.  556. 

2  2  Calcutta  &  B.  S.  Nav.  Co.  v.  De  Mattos,  32  Law  J.  Q.  B.  322,  per 
Blackburn,  J.;  Dunlop  v.  Lambert,  6  Clark  &  F.  600,  per  Lord  Cottenham; 
Suit  V.  Woodhall,  113  Mass.  391;  McNeal  v.  Braun,  .53  N.  J.  Law,  617,  23  Atl. 
687;  Bloyd  v.  Pollocks,  27  W.  Va.  75;  Cougar  v.  Galena  &  C.  U.  R.  Co.,  17 
Wis.  477. 


Ch.   4]  SUBSEQUENT    APPKOPRIATION.  101 

seller's  agent,  and  hence  that  the  property  does  not  pass  until  de- 
livery by  the  carrier  to  the  buyer;  ^^  but  other  cases  hold  that  the 
condition  as  to  payment  is  intended  merely  to  reserve  the  seller's 
lien  for  the  price,  and  that  the  delivery  of  the  goods  to  the  carrier, 
being  made  in  pursuance  of  the  instructions  of  the  buyer,  passes  the 
property.^* 
Other  Forms  of  Appropriation  by  Act  of  Seller, 

Appropriation  by  the  act  of  the  seller  may  take  place  even  be- 
fore the  goods  are  forwarded,  as  where  they  are  to  be  sent  in  sacks 
furnished  by  the  buyer.  Under  such  circumstances,  unless  the 
seller  retains  the  right  of  disposal,  the  appropriation  is  complete 
as  soon  as  the  seller  puts  the  goods  into  the  sacks.^° 

Another  common  form  of  appropriation  by  act  of  the  seller  is 
where,  in  pursuance  of  the  contract,  he  incorporates  his  own  ma- 
terials with  the  property  of  the  buyer,  as  where  a  carpenter  is  em- 
ployed to  repair  a  chattel  or  to  erect  a  building  on  land  of  his 
employer.  As  soon  as  the  incorporation  takes  place,  the  property 
in  the  materials  passes;  but  up  to  that  moment  the  carpenter  has 
the  right  to  use  any  materials  he  sees  fit,  and  the  mere  fact  that 
he  has  selected  materials  with  the  intention  of  incorporating  them 
confers  upon  the  employer  no  right  of  property  in  them.^® 

23  state  V.  O'Neil,  58  Vt.  140,  2  Atl.  586  (see,  al^o,  dissenting  opinion  of 
Harlan,  J.,  in  O'Neil  v.  Vermont,  144  U.  S.  323,  12  Sup.  Ct  693,  in  whicb 
a  writ  of  error  was  dismissed  on  the  ground  that  no  fedei'al  question  was 
involved);  Lane  v.  Chadwick,  146  Mass.  68,  15  N.  B.  121;  Baker  v.  Bourci- 
cault,  1  Daly,  23;  U.  S.  v.  Shriver,  23  Fe±  134;  Wagner  v.  Hallack,  3 
Colo.  176. 

24  Com.  V.  Fleming,  130  Pa.  St.  138,  18  Atl.  622;  Higgins  v.  Murray,  73 
N.  Y.  252,  semble;  State  v.  Intoxicating  Liquors,  73  Me.  278;  Pilgreen  v. 
State,  71  Ala.  368;  State  v.  Carl,  43  Ark.  353;  Hunter  v.  State,  55  Ark.  357, 
18  S.  W.  374;   Norfolk  S.  R.  Co.  v.  Barnes,  104  N.  C.  25,  10  S.  B.  83. 

2  5  Aldridge  v.  Johnson,  7  El.  &  Bl.  885,  26  Law  J.  Q.  B.  296;  Langton  v. 
Higgins,  4  Hurl.  &  N.  402,  28  Law  J.  Bxch.  252.  In  Ogg  v.  Shuter,  1  C.  P. 
Div.  47,  reversing  L.  R.  10  C.  P.  159,  it  was  held  that,  by  taking  a  bill  of 
lading  to  his  own  order,  the  seller  reserved  the  right  of  disposal,  notwith- 
standing the  fact  that  he  had  put  the  goods  in  the  buyer's  sacks. 

2  6  Tripp  V.  Armitage,  4  Mees.  &  W.  687;  Wood  v.  Bell,  6  Bl.  &  Bl.  355, 
affirming  5  El.  &  Bl.  772;  Seath  v.  Moore,  11  App.  Cas.  350,  381;  Johnson 
v.  Hunt,  11  Wend.  135;  Wilkins  v.  Holmes,  6  Gush.  147;  Laugd.  Cas.  Sales, 
1029. 


102  EFFECT    OF    THE    CONTRACT    IN    PASSING    THE    PROPERTY.       [Ch.  4 

Seller  must  Act  in  Conformity  with  Authority. 

Where  the  approjiiiation  is  to  be  made  by  the  seller,  no  prop- 
erty in  the  goods  selected  by  him  will  pass  unless  he  exercises  his 
authority  in  conformity  with  the  contract.  Thus  no  property  will 
pass  if  the  jj^oods  do  not  conform  to  the  description,^^  or  unless  he 
ships  the  goods  within  the  time  specified,^*  or  unless  he  delivers 
to  the  carrier  designated,  if  a  particular  carrier  be  designated  by 
the  contract"  Again,  no  property  will  pass  if  he  sends  a  greater 
quantity  of  goods  than  the  buyer  has  ordered;  and  if  he  does  so 
there  must  be  a  subsequent  acceptance  by  the  buyer,  in  order  to 
pass  the  pro|)erty.^° 
Appropriation  by  Act  of  Buyer. 

Although  cases  in  which  authority  to  make  the  appropriation  is 
conferred  on  the  buyer  are  comparatively  rare,  the  same  principle 
applies  to  him  as  to  the  seller,  if  by  the  contract  an  act  which  neces- 
sarily determines  the  selection  is  to  be  performed  by  the  buyer. 
For  example,  suppose  that  by  the  contract  the  seller  sells  out  of  a 
stack  of  bricks  1,000,  to  be  selected  by  the  buyer,  who  is  to  send 

27  Wait  V.  Baker,  2  Exch.  1,  per  Tarke,  B.;  Gardner  v.  Lane,  12  Allen,  39 
(cf.  9  Allen,  492,  98  Mass.  517);  Wolf  v.  Dietzsoh,  75  111.  205;  Brown  v. 
Berry,  14  N.  H.  459;  Aultman,  Miller  &  Co.  v.  Clifford,  55  Minn.  159,  56  N. 
W.  593. 

2  8  Rommel  v.  Winjrate,  103  Mass.  327.  Where  the  order  requires  shipment 
on  a  specified  day,  shipment  before  the  day  does  not  pass  the  property. 
Hoover  v.  Maher,  51  Minn.  269,  53  N.  W.  646.  > 

29  Wheelhouse  v.  Parr,  141  Mass.  593,  6  N.  E.  787. 

80  Cunliffe  v.  Harrison,  6  Exch.  903;  Downer  v.  Thompson,  2  Hill,  137 
(cf.  6  Hill,  208);  Rommel  v,  Wingate,  103  Mass.  327;  Barton  v.  Kane,  17 
Wis.  38;  Bailey  v.  Smith,  43  N.  H.  141.  Where  earthenware  was  ordered, 
and  additional  earthenware,  entirely  different,  was  sent  in  the  same  crate, 
held,  that  the  property  had  not  jiassed.  Levy  v.  Green,  1  El.  &  El.  9G9,  28 
Law  J.  Q.  B.  319.  Some  American  cases  hold  that  the  seller  "may  satisfy 
the  contract  by  tendering  a  greater  quantity,  from  which  the  buyer  may 
select,  provided  tlie  mass  does  not  vary  in  quality."  Ben.j.  Sales  (Corbiu's 
6th  Am.  Ed.)  §§  512,  531.  This  is  said  to  be  a  sequence  from  Kimberly  v. 
Patchin,  supra,  and  other  cases  holding  that  where  the  goods  sold  are  part 
of  a  specific  bulk,  of  uniform  character,  the  property  in  an  undivided  part 
may  be  transferred  without  separation.  But,  admitting  the  correctness  of 
those  cases,  it  would  be  an  undue  extension  of  the  principle  governing  them 
to  hold  that  a  delivery  of  a  greater  amount  than  that  ordered,  out  of  which 
the  buyer  is  to  select,  is  a  delivei'y  in  conformity  with  the  contract. 


Ch.   4]  SUBSEQUENT    APPROPRIATION.  103 

his  cart  and  fetch  them  away.  Here  the  buyer  may  choose  first 
one  part  of  the  stack,  and  then  another,  until  he  has  done  the  act 
determining  his  election;  that  is,  until  he  has  put  the  bricks  into 
his  cart.  When  he  has  done  that,  his  election  is  determined,  and 
he  cannot  put  back  the  bricks  and  take  others  from  the  stack.'* 
Chattel  Made  to  Order. 

Where  a  chattel  is  made  to  order  out  of  the  materials  of  the 
maker,  it  seems,  on  principle,  that  the  ordinary  rule  should  apply; 
that  is,  that  unless  the  maker  is  authorized  or  required  to  do  in 
respect  to  it,  after  it  is  completed,  some  act  necessarily  involving 
its  appropriation  to  the  contract, — ^for  example,  to  forward  it  to  the 
buyer, — the  property  will  not  pass  until  it  is  accepted  by  him.  In 
making  the  chattel,  as  in  procuring  goods  in  any  other  way  to  ful- 
fill a  contract,  the  seller  is  acting  for  himself,  and  not  for  the  buyer, 
and  he  can  satisfy  his  contract  equally  well  by  making  and  tendering 
another  chattel  within  the  stipulated  time  as  by  tendering  the  chat- 
tel first  made.  This  view  has  been  sustained  in  England,  and  in 
many  of  the  courts  of  this  country;  °^  but  in  others  it  is  held  that 
the  property  passes  as  soon  as  the  seller  finishes  the  chattel,  and 
sets  it  apart  for  the  buyer. ^^ 
Chattel  to  he  Paid  for  in  Installments  as  Work  Progresses. 

In  shipbuilding  contracts,  where  it  is  provided  that  the  pay- 
ments shall  be  made  in  installments  at  particular  stages  in  the  prog- 
ress of  the  work,  a  peculiar  rule  of  construction  has  been  adopted 
in  England,  by  which  the  parties  are  held,  by  implication,  to  have 

»i  Benj.  Sales,  §  359;  Valentine  v.  Brown,  18  Pick.  549.  Of.  Inhabitants  of 
Westfleld  v.  Mayo,  122  Mass.  100. 

32  Mucklow  V.  Mangles,  1  Taunt.  318;  Atkinson  v.  Bell,  8  Barn.  &  C.  277; 
Moody  V.  Brown,  34  Me.  107;  Tufts  v.  Grewer,  83  Me.  407,  22  Atl.  382; 
Shaw  V.  Smith,  48  Conn.  306;  Rider  v.  Kelley,  32  Vt.  268;  Scudder  v.  Calais 
Steamboat  Co.,  1  Cliff.  370,  378,  Fed.  Cas.  No.  12,505,  per  Clifford,  .T. ;  Butter- 
worth  V.  McKinly,  11  Plumph.  200,  per  Totten,  J.;  Tufts  v.  Lawrence,  77 
Tex.  526,  14  S.  W.  165.  See  Goddard  v.  Binney,  115  Mass.  450,  456;  Whit- 
comb  V.  Whitney,  24  Mich.  485;  Pratt  v.  Peck,  70  Wis.  020,  36  N.  W.  410; 
Langd.  Cas.  Sales,  1029. 

3  3  Beraent  v.  Smith,  15  Wend.  493;  Ballentine  v.  Robinson,  4G  Pa.  St.  177; 
Shawhau  v.  Van  Nest,  25  Ohio  St.  490;  Higj^ins  v.  Murray,  4  Hun,  505.  See, 
also.  West  Jersey  R.  Co.  v.  Trenton  Car-Works  Co.,  32  N.  J.  Law,  517;  Gor- 
don v.  Norris,  49  N.  H,  376. 


104  EFFECT    OF   THE    CONTRACT    IN    PASSING    THE    PROPERTY.       [C"l).    1 

evinced  an  intention  that  the  property  in  the  uncompleted  vessel 
shall  pass  on  the  payment  of  the  first  installment.'*  It  follows 
that,  as  new  materials  are  incorporated  in  the  nnfinished  vessel, 
they  become  the  property  of  the  buyer.  This  rule  of  construction 
has  not  met  with  approval  in  the  United  States,  and  it  is  gen- 
erally ^"^  held  that  the  intention  of  the  parties  as  to  the  time  when 
the  property  is  to  be  transferred  is  to  be  detemiined,  as  in  other 
cases,  from  the  terms  of  the  contract  and  the  circumstances  of  the 
transaction.^'  Therefore,  unless  a  contrary  intention  appears,  the 
ordinary  rule  will  prevail, — that  no  property  passes  before  the 
chattel  is  completed.'^ 

RESERVATION  OF  RIGHT  OF  DISPOSAL. 

54.  When  there  is  a  contract  for  the  sale  of  unascer- 
tained goods,  and  the  seller,  in  pursuance  thereof,  deliv- 
ers goods  to  a  carrier  for  transmission  to  the  buyer,  but 
reserves  the  right  of  disposal  until  certain  conditions  are 
fulfilled,  notwithstanding  the  shipment,  the  appropriation 
does  not  become  absolute,  and  the  property  does  not  pass 
until  the  conditions  are  fulfilled. 

55.  BY  BILL  OF  LADING— When  the  goods  are  shipped, 
and  by  the  bill  of  lading  the  goods  are  deliverable  to  the 
order  of  the  seller  or  his  agent,  the  seller  is  prima  facie 
deemed  to  reserve  the  right  of  disposal.^ 

56.  When  the  seller,  upon  shipment,  takes  a  bill  of  lad- 
ing to  his  own  order,  and  deals  with  it  so  as  to  secure  the 

»4  Woods  v.  Russell,  5  Barn.  &  Aid.  1)42;  Clarke  v.  Spence,  4  Adol.  &  B. 
448.    See,  also,  Seath  v.  Moore,  11  App.  Cas.  350,  380. 

SB  The  English  rule  was  followed  in  Scuddor  v.  Calais  Steamboat  Co.,  1 
Cliff.  370,  Fed.  Cas.  No.  12,.jG5,  and  Sandford  v.  Wiggins  Ferry  Co.,  27 
Ind.  522. 

se  Clarkson  v.  Stevens,  106  U.  S.  505,  1  Sup.  Ct.  200,  affirming  Stevens  v. 
Shippen,  29  N.  J.  Eq.  G02. 

37  Andrews  v.  Durant,  11  N.  Y.  35;  Williams  v.  Jackman,  16  Gray,  514; 
Briggs  v.  Light  Boat,  7  Allen,  287;  Wright  v.  Tetlow,  99  Mass.  397;  Elliott 
V.  Edwards,  35  N.  J,  Law,  265,  Edwards  v.  Elliott,  36  N.  J.  Law,  449;  Derby- 
shire's  Estate,  81  Pa.  St.  18;   Green  v.  Hall,  1  Houst.  506,  546. 

•8  Chalm.  Sale,  33. 


Cll.   4]  RESERVATION    OP   RIGHT   OF   DISPOSAL.  105 

contract  price,  either  by  sending  to  an  agent  the  bill  of 
lading,  together  with  a  bill  of  exchange  drawn  on  the 
buyer  for  the  price,  with  instructions  to  deliver  the  bill  of 
lading  only  on  acceptance  or  payment  of  the  bill  of  ex- 
change, or  by  delivering  the  bill  of  lading  as  security  to  a 
banker  w^ho  has  discounted  the  bill  of  exchange,  the  appro- 
priation is  conditional  on  the  acceptance  or  payment  of 
the  bill  of  exchange,  as  the  case  may  be. 

The  rule  that  the  seller  who  delivers  goods  to  a  carrier  in  pur- 
suance of  authority  derived  from  the  buyer  is  presumed  thereby 
to  appropriate  the  goods  to  the  contract,  like  other  rules  for  de- 
termining when  the  property  has  passed,  is  simply  a  rule  of  con- 
struction adopted  for  the  purpose  of  ascertaining  the  real  intention 
of  the  parties,  which  they  have  failed  to  express.^ **  And  therefore, 
if  it  appears  that  the  seller,  though  authorized  to  make  the  appropria- 
tion, has  failed  to  do  so,  or  has  done  so  upon  condition,  the  pre- 
sumption must  yield  to  the  facts.  The  commonest  way  of  rebutting 
this  presumption  is  by  showing  that  he  has  reserved  the  right  of 
disposal,  or,  as  it  is  frequently  called,  the  "jus  disponendi." 

Reservation  of  Right  of  Disposal  by  Bill  of  Lading. 

A  bill  of  lading  is  a  writing  signed  on  behalf  of  the  carrier  to 
whom  goods  are  delivered  for  transportation,  acknowledging  their 
receipt,  and  undertaking  to  deliver  them  at  their  place  of  destina- 
tion to  the  person  named  therein.  When  a  bill  of  lading  is  given, 
no  one  is  entitled  to  receive  the  goods  except  the  person  therein 
named,  or  one  to  whom  the  bill  of  lading  has  been  properly  in- 
dorsed. During  the  transit  the  bill  of  lading  is  the  symbol  of 
property,  and  the  indorsement  and  delivery  of  the  bill  of  lading 
operate  as  a  symbolical  delivery  of  the  goods,  and  by  such  indorse- 
ment and  delivery  the  property  passes,  if  such  is  the  intention  of 
the  parties.  When,  therefore,  the  seller  ships  the  goods  which  he 
intends  to  deliver  under  the  contract,  but  takes  a  bill  of  lading  to 
his  own  order,  not  as  agent  of  the  buyer,  but  on  his  behalf,  he 
thereby  reserves  the  power  of  disposing  of  the  property  in  the  goods; 
and  consequently  there  is  no  final  appropriation,  but,  at  most,  a 
conditional  appropriation,  and  the  property  does  not,  on  shipment, 

«»  Benj.  Sales,  §  381. 


106  EFFKCT    OF    TIIL:    CO-NTKACT    in    PAiJSl.NG    TUE    PROPERTY.       [Cll.   4 

pass  to  the  buyer.*"  The  fact  that  the  seller  takes  the  bill  of  lad- 
ing to  his  own  order  is  almost  decisive  to  show  his  intention  to 
reserve  the  right  of  disposal.*'  The  presumption  that  he  thereb}- 
reserves  such  right  may,  indeed,  be  rebutted  by  proof  that  in  so 
doing  he  acted  as  agent  of  the  buj'er,  and  did  not  intend  to  retain 
control  of  the  property;  and  it  is  for  the  jury  to  determine,  as  a 
question  of  fact,  what  the  real  intention  was.*?  But  the  mere 
fact  that  the  seller  sends  to  the  buyer  an  invoice  describing  the 
goods  as  shipped  on  his  account  and  at  his  risk  is  not  enough  to 
rebut  the  presumption;*'  and  the  presumption  arises  although 
the  seller  ships  the  goods  in  the  buyer's  own  vessel,  and  the  bill  of 
lading  states  that  the  goods  are  freight  free,  and  the  buyer's  own 
property.** 
Dealing  with  Bill  of  Lading  to  Secure  Contract  Price. 

A  common  method  of  dealing  with  the  bill  of  lading,  when  the 
seller  reserves  the  right  of  disposal  so  as  to  secure  the  payment  of 
the  contract  price,  is  to  send  the  bill  of  lading,  together  with  a 
bill  of  exchange  drav,n  on  the  buyer  for  the  price,  to  an  agent  of 
the  seller,  with  instructions  that  the  bill  of  lading  is  not  to  be  de- 
liv^ered  to  the  buyer  until  acceptance    or  payment  of  the  bill  of 

*o  Mirabita  v.  Imperial  Ottoman  Bank,  3  Exch.  Div.  164,  172,  per  Cotton, 
L.  J.;  Wait  V.  Baker,  2  Exch.  1;  Brandt  v.  Bowlby,  2  Bam.  &  Add.  932; 
Moakes  v.  Nicholson,  19  C.  B.  (N.  S.)  290,  34  Law  J.  C.  P.  273;  Ogg  v.  Shuter. 
1  C.  P.  Div.  47,  reversing  L.  R.  10  C.  P.  159;  Ellershaw  v.  Magniac,  6  Exch 
070;  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295;  Farmers'  & 
Mechanics'  Nat  Bank  v.  Logan,  74  N.  Y.  5G8.  578;  Erwin  v.  Harris,  87  Ga. 
333.  13  S.  E.  513;  Alabama,  G.  S.  R.  Co.  v.  Mt.  Vernon  Co.,  84  Ala.  173,  4 
South.  356;  Forcheimer  v.  Stewart,  65  Iowa,  593,  22  N.  W.  886;  Bergman 
v.  Indianapolis  &  St.  L.  R.  Co.,  104  Mo.  77,  15  S.  W.  992.  See,  also,  Stollen- 
werck  v.  Thacher,  115  Mass.  224.  Where  the  seller  delivers  goods  to  a  car- 
rier, consigned  to  himself,  in  care  of  the  buyer,  the  property  does  not  pass. 
Ward  V.  Taylor,  56  111.  494. 

*i  Shepherd  v.  Harrison,  L.  R.  5  H.  L.  IIG;  Dows  v.  National  Exchange 
Bank,  91  U.  S.  618;  Newcomb  v.  Boston  &  L.  R.  Co.,  115  Mass.  230. 

*2  Joyce  v.  Swann,  17  C.  B.  (N.  S.)  84;  Van  Casteel  v.  Booker,  2  Exch.  691; 
Browne  v.  Hare,  4  Hurl.  &  N.  822,  29  Law  J.  Exch.  6;  Moakes  v.  Nichol- 
son, 19  C.  B.  (N.  S.)  290,  34  Law  J.  C.  P.  273;  Merchants'  Nat  Bank  v. 
Bangs,  102  Mass.  291;  Hobart  v.  Littlefield,  13  R,  I.  341. 

*^  Cases  cited  in  note  41,  supra. 

4+  TuiTier  V.  Trustees  of  Liverpool  Docks,  0  Exch.  543;  Gabarron  v.  Kreeft, 
L.  R.  10  Exch.  274. 


Ch.  4]  RESERVATION    OF    RIGHT    OF    DISPOSAL.  107 

excliange.  In  such  a  case  the  appropriation  does  not  become  ab- 
solute, and  the  property  does  not  pass,  until  the  buyer  accepts  or 
pays  the  bill  of  exchange,  as  the  case  may  be.**  And  if  the  seller 
transmits  the  bill  of  exchange  and  the  bill  of  lading  directly  to  the 
buyer,  upon  condition  that  he  is  not  to  retain  the  bill  of  lading 
unless  he  honors  the  bill  of  exchange,  the  buyer  is  bound  to  return 
the  bill  of  lading  if  he  does  not  comply  with  the  condition;  and  if 
he  wrongfully  retains  the  bill  of  lading  the  property  in  the  goods 
does  not  pass  to  him.*^  More  frequently  still,  the  seller  obtains  a 
discount  of  the  bill  of  exchange  from  a  banker  to  whom  he  delivers 
it  with  the  indorsed  bill  of  lading  attached.  Under  these  circum- 
stances, the  banker  acquires  a  special  property  in  the  goods  to  secure 
his  advances,  and  the  appropriation  of  the  goods  to  the  contract  is 
conditional  upon  the  buyer's  payment  of  the  bill  of  exchange,*^  but 
upon  payment  or  tender  by  him  the  property  vests  in  him. 

*6  Mirabita  v.  Imperial  Ottoman  Bank,  3  Exch.  Div.  164,  per  Cotton,  L.  J.; 
Shepherd  v.  Harrison,  L.  R.  4  Q.  B.  196;  Id.  493,  in  the  house  of  lords,  L. 
R.  5  H.  L.  116;  Ogg  v.  Shuter,  1  C.  P.  Div.  47;  Alderman  v.  Eastern  R.  R., 
115  Mass.  23;!;  Farmers'  &  Mecliauics'  Nat.  Bank  v.  Logan,  74  N.  Y.  568, 
578;  Seeligson  v.  Philbrick,  30  Fed.  600;  Jones  v.  Brewer,  79  Ala.  545.  A 
bill  of  lading  deliverable  to  order,  when  attached  to  and  forwarded  with 
a  time  draft,  without  special  instructions,  to  an  agent,  for  collection,  may 
be  surrendered  to  the  drawee  on  acceptance  of  the  draft.  National  Bank  of 
Commerce  v.  Merchants'  Nat  Bank,  of  Memphis,  91  U.  S.  92.  But  where 
the  seller  delivered  goods  to  a  canier,  consigned  to  the  buyer,  and  took  a 
shipping  receipt  in  the  name  of  the  buyer,  which  he  sent  with  a  draft  to  a 
bank,  with  directions  to  deliver  the  receipt  on  acceptance  of  the  draft,  a 
finding  that  the  property  passed  to  the  buyer  on  delivery  to  the  carrier  was 
warranted.    Wigton  v.  Bowley,  130  Mass.  252. 

48  Shepherd  v.  Harrison,  L.  R.  4  Q.  B.  196;  Id.  493,  L.  R.  5  H.  L.  116,  133, 
per  Lord  Cairns;  Cayuga  County  Nat.  Bank  v.  Daniels,  47  N.  Y.  631.  Where 
the  seller  deposited  in  the  mail,  directed  to  the  buyer,  an  unindorsed  bill  of 
lading,  attached  to  a  draft  for  the  price,  the  question  whether  the  property 
had  passed  was  for  the  jury.  Alabama  G.  S.  R.  Co.  v.  Mt.  Vernon  Co.,  84 
Ala.  173,  4  South.  356.    See  Ex  parte  Banner,  2  Ch.  Div.  278. 

4T  Mirabita  v.  Imperial  Ottoman  Bank,  3  Exch.  Div.  164;  Jenkyus  v. 
Brown,  14  Q.  B.  496,  19  Law  J.  Q.  B.  286;  Dows  v.  National  Exchange  Bank, 
91  U.  S.  618;  Forty  Sacks  of  Wool,  14  Fed.  043;  First  Nat.  Bank  of  Caira 
V.  Crocker,  111  Mass.  163;  Fifth  Nat.  Bank  of  Chicago  v.  Bayley,  115  Mass. 
228;  Bank  of  Rochester  v.  Jones,  4  N.  Y.  497;  Farmers'  &  Mechanics'  Nat. 
Bank  v.  Logan,  74  N.  Y.  568;  Hieskell  v.  Farmers'  &  Mechanics'  Nat.  Bank, 
89  Pa.  St.  155;  Emery  v.  Irving  Nat.  Bank,  25  Ohio  St.  360;  Halsey  v. 
Warden,  25  Kan.  128;  Merchants'  Exchange  Bank  v.  McGraw,  8  C.  C.  A. 
420,  59  Fed.  972. 


lUS  MISTAKE,  FAILURE   OF   CONSIDERATION,  AMD    FRAUD.  [Ch.   5 

CHAPTER  V. 

MISTAKE.  FAILURE  OF  CONSIDERATION,  AND  FRAUD. 

57-58.  Mistake. 

59.  Failure  of  Consideration. 

60-61.  Fraud. 

62-66.  Election  to  Affirm  or  Rescind  for  Fraud. 

67-69.  Fraud  on  Creditors. 

70.  How   Far  Delivery   is  Essential   to   the  Transfer  of  the   Property 
against  Creditors  and  Purchasers. 

MISTAKE. 

57.  The  effect  of  mistake,  -when  it  has  any  operation  at 
all,  is  to  render  the  contract  void. 

58.  A  person  -who  has  entered  into  a  contract  of  sale, 
void  on  the  ground  of  mistake,  may,  if  it  is  still  execu- 
tory, repudiate  it,  and  successfully  defend  an  action  upon 
it.  If  he  has  paid  money  or  delivered  goods  under  the 
contract,  he  may,  upon  returning  -what  he  has  received 
under  it,  recover  the  money  or  the  goods. 

As  has  been  previously  explained,  when  a  contract  has  been 
entered  into  by  the  parties  under  a  material  mistake  of  fact  of  such 
a  character  that  there  was  no  mutual  assent,  the  contract  is  void.* 
The  effect  of  the  mistake  is  to  prevent  the  contract  from  ever 
coming  into  existence,  and  hence  to  prevent  its  enforcement.  A 
party  to  such  an  apparent  agreement  may  wait  until  the  other  party 
seeks  to  enforce  it,  and  then  assert  its  nullity  by  way  of  defense; 
or  he  may,  if  he  prefers,  come  forward  actively  as  |)laiutiff.^      If 

1  Ante,  p.  28  et  seq.  It  Is  sometimes  said  that  a  pai-ty  to  an  apparent  agree- 
ment, void  by  reason  of  mistake,  may  elect  *o  treat  it  as  subsisting,  but, 
strictly  speaking,  the  agreement  which  he  so  elects  to  treat  as  subsisting  is  a 
new  agreement,  based  on  the  state  of  facts  which  he  has  subsequently  discov- 
ered to  exist    Pol.  Cont.  450. 

»  He  may,  where  the  facts  warrant  such  a  course,  sue  In  equity  to  have  the 
transaction  declared  void,  and  to  be  relieved  from  any  possible  claims  in 
respect  to  it    Pol.  Cont.  450. 


Ch.   5]  FAILURE    OF   CONSIDEBATION.  lO^ 

the  contract  has  been  executed  under  a  continuance  of  the  mistake^ 
a  party  who  has  performed  his  part  may  repudiate  it  on  discovering 
his  mistake,  and  may  then  recover  the  money  paid  or  the  goods 
delivered  by  him  under  the  contract,  unless  he  has  done  something 
to  render  impossible  a  restitutio  in  integrum;  that  is,  a  restora- 
tion of  the  other  party  to  the  condition  he  was  in  before  the 
supposed  contract  was  entered  into.^  In  such  a  case  the  buyer 
can  maintain  an  action  for  money  had  and  received,  and  the  seller 
can  maintain  an  action  of  replevin;  and,  since  the  sale  is  void, 
the  buyer  acquires  no  title  under  it,  and  can  pass  no  title,  even  to  a 
bona  fide  purchaser.* 

FAILURE  OF  CONSIDERATION. 

69.  When  the  buyer  has  paid  the  price  in  "whole  or  in 
part,  and  the  consideration  for  such  payment  totally  fails, 
he  may  rescind  the  contract,  and  recover  the  money  so 
paid. 

When  the  seller  fails  entirely  to  perform  his  part  of  the  contract, 
the  buyer  may  put  an  end  to  it,  and  recover  in  an  action  for  money 
had  and  received  any  part  of  the  price  which  he  has  advanced.^ 
In  this  respect,  as  will  be  seen,  a  greater  effect  is  given  to  failure  of 
performance  on  the  part  of  the  seller  than  on  the  part  of  the  buyer. ^ 
The  same  right  of  action  arises  in  favor  of  the  buyer  when  it  turns 

8  Cox  V.  Prentice,  3  Maule  &  S.  344;  Grymes  v.  Sanders,  93  U.  S.  55,  G2: 
Harris  v.  Hanover  Nat.  Bank,  15  Fed.  78G;  Benj.  Sales,  §  415,  and  see  post, 
p.  121,  where  the  same  rule  Is  applied  to  rescission  for  fraud.  Inasmuch  as 
mistake,  unlike  fraud,  renders  the  contract  void,  and  not  merely  voidable, 
there  can,  strictly  speaking,  be  no  rescission  but  simply  a  repudiation  of 
the  supposed  contract. 

*  Chapman  v.  Cole,  12  Gray,  141;  Rodllff  v.  Dallinger,  141  Mass.  1,  4  N.  E. 
805;  Alexander  v.  Swackhamer,  105  Ind.  81,  4  N.  E.  433,  and  5  N.  E.  908. 

0  Giles  v.  Edwards,  7  Term  R.  181;  Hill  v.  Rewee,  11  Mete.  (Mass.)  268, 
271;  Miner  v,  Bradley,  22  Pick.  457,  458;  Howe  Mach.  Co.  v.  Willie,  85  111. 
333;  Benj.  Sales,  §  423.  Money  paid  for  shares  in  a  projected  company, 
which  is  not  formed,  may  be  recovered  back.  Kempson  v.  Saunders,  4  Bing. 
5.  In  some  states  the  buyer  may  avoid  the  sale  for  breach  of  an  express 
warranty.    Post,  p.  244. 

«  Post,  p.  234.    But  see  p.  229. 


110  MISTAKE,  FAILURE    OF    CONSIDERATION,  AND    FRAUD.  [Ch.   5 

out  that  the  seller  had  no  title  to  the  thing  sold/  So  if  the  thing 
sold  be  a  bill  or  note  or  other  security,  and  it  turn  out  to  be  invalid 
because  of  forgery,'  or  material  alteration,^  or  for  any  other  cause,^° 
the  buyer  may  rescind  for  failure  of  consideration.  So,  on  the  sale 
of  a  patent,  if  the  patent  be  void,  the  consideration  fails."  But, 
though  the  thing  sold  turn  out  to  be  worthless,  if  it  be  what  the 
buyer  intended  to  buy,  there  is  no  failure  of  consideration.^^ 
Tlie  Faihire  must  be  Total. 

To  authorize  rescission,  if  the  contract  be  entire,  the  failure  of 
consideration  must  be  total.  The  buyer  is  not  obliged,  indeed,  to 
accept  a  partial  performance,  and,  if  such  performance  only  is 
tendered,  he  may  rescind  the  contract,  and  recover  back  the  price.^' 
But,  if  he  has  accepted  a  partial  performance,  he  cannot,  at  least 
without  returning  what  he  has  received,  afterwards  rescind,  but 

I  Post,  p.  167. 

8  Jones  V.  Ryde,  5  Taunt.  488;  Gurney  v.  Womersley,  4  El.  &  Bl.  133,  24 
Law  J.  Q.  B.  46;  Terry  v.  Bissell,  26  Conn.  23;  Aldrich  v.  Butts,  5  II.  I.  218; 
Merriam  v.  Wolcott,  3  Allen,  258.  See,  also,  Whitney  v.  National  Bank  of 
Potsdam,  45  N.  Y.  303;   Bell  v.  Dagg,  60  N.  Y.  528. 

8  Burchfield  v.  Moore,  3  El.  &  Bl.  683,  23  Law  J.  Q.  B.  261. 

10  Gompertz  v,  Bartlett,  2  El.  &  Bl.  849,  23  Law  J.  Q.  B.  65  (a  bill  of  ex- 
change purporting  to  be  a  foreign  bill,  which  turned  out  to  be  a  domestic  bill, 
and  invalid  because  unstamped;  Wood  v.  Sheldon,  42  N.  J.  Law,  421 
(scrip  illegally  and  fraudulently  issued);  Paul  v.  City  of  Kenosha,  22  Wis. 
2.57  (bonds  void  for  want  of  power  in  the  city  to  issue  them).  But  in  Lit- 
tauer  v.  Goldman,  72  N.  Y.  506,  it  was  held  that  the  buyer  of  a  note  void 
for  usury  could  not  recover  for  failure  of  consideration. 

II  Nash  V.  Lull,  102  Mass.  60;  Harlow  v.  Putnam,  124  Mass.  553;  Shepherd 
v.  .Jenkins,  73  Mo.  510;  Green  v.  Stuart,  7  Baxt.  *418.  But  where  the  plaintiff 
bought  the  exclusive  right  to  use  a  patent  in  a  foreign  coimtry,  being  aware 
that  no  such  right  could  legally  be  obtained,  but  desiring  an  ostensible  grant 
of  the  right,  with  the  object  of  floating  a  company,  it  was  held  that,  having 
obtained  wiiat  he  intended  to  buy,  he  could  not  recover  the  purchase  money 
on  the  ground  that  the  consideration  had  failed.  Begbie  v.  Phosphate  Sew- 
age Co.,  L.  R.  10  Q.  B.  491,  affirmed  in  1  Q.  B.  Dlv.  679.  And  see,  also,  Tay- 
lor V.  Hare,  1  Bos.  &  P.  N.  R.  260;  Lawes  v.  Purser,  6  El.  &  Bl.  930,  26  Law 
J.  Q.  B.  25. 

12  Lambert  v.  Heath.  15  Mees.  &  W.  487;  Bryant  v.  Pember,  45  Vt.  487; 
Blattcnberger  v.  Holman,  103  Pa.  St.  .555;  Xeidefer  v.  Chastaiu,  71  lud.  363; 
Wheat  V.  Cross,  31  Md.  99. 

IS  Giles  V.  Edwards,  7  Term  R.  181.    See  Smith  v.  Lewis,  40  Ind.  98. 


Ch.   5]  FRAUD.  Ill 

must  sue  for  breach  of  the  contract.**  If  he  has  enjoyed  part  of 
the  consideration,  there  can  be  no  rescission.^'  Nevertheless,  al- 
rbough  the  contract  be  entire,  if  it  is  for  a  definite  quantity  of  goods 
all  of  one  quality  at  a  fixed  price  per  ton  or  pound,  and  the  seller 
delivers  only  a  part  and  makes  default  in  delivering  the  remainder, 
it  is  held  that  the  buyer  who  has  advanced  the  price  of  the  whole 
may  recover  back  the  price  of  the  part  which  is  deficient.^"  In 
this  case  the  entirety  of  the  contract  is  broken  by  the  concurrent 
act  of  the  parties.^^  But,  if  the  failure  is  merely  as  to  the  quality 
of  a  part  of  the  goods,  the  buyer  cannot  rescind  unless  he  rescinds 
as  to  the  whole.^* 

FRAUD. 

60.  When  a  party  to  a  contract  of  sale  has  been  induced 
to  enter  into  it  by  the  fraud  of  the  other  party,  the  con- 
tract is  voidable  at  his  option. 

61.  CHARACTERISTICS— Fraud  is  a  false  representa- 
tion of  fact,  made  w^ith  a  kno^wledge  of  its  falsehood,  or 
in  reckless  disregard  -whether  it  be  true  or  false,  "writh 
the  intention  that  it  shall  be  acted  upon  by  the  complain- 
ing party,  and  actually  inducing  him  to  act  upon  it. 

Fraud  renders  all  contracts  voidable  both  at  law  and  in  equity. 
A  man  is  not  bound  by  a  contract  to  which  his  consent  has  been 
obtained  by  fraud,  because  but  for  the  fraud  he  would  not  have  con- 
sented.^* 

1*  Hamor  v.  Groves,  15  C.  B.  CG9,  24  Law  J.  C.  P,  53;  Miner  v.  Bradley, 
22  Pick.  457;  Clark  v.  Baker,  5  Mete.  (Mass.)  452. 

18  Taylor  v.  Hare,  1  Bos.  &  P.  N.  R.  260;  Lawes  v.  Purser,  6  El.  &  Bl.  930, 
26  Law  J.  Q.  B.  25;  Bcnj.  Sales,  §  427. 

i«  Devaux  v.  Conolly,  8  C.  B.  040;  Hill  v.  Rewee,  11  Mete.  (Mass.)  2GS, 
272.  This  is  in  the  nature  of  a  total  failure  of  consideration  for  part  of  the 
price  paid,  not  a  partial  failure  for  the  whole.  Benj.  Sales,  §  420.  As  to  what 
constitutes  a  severable  contract,  see  Norris  v.  Harris,  15  Cal.  220;  McGiath  v. 
Cannon  (Minn.)  57  N.  W.  150;  Potsdamer  v.  Kruse  (Minn.)  58  N.  W.  983. 

17  Mansfield  v.  Trigg,  113  Mass.  3."J0,  352,  per  Wells,  J. 

18  Harnor  v.  Groves,  15  C.  B.  609,  24  Law  J.  C.  P.  53;  Clark  v.  Baker,  5 
Mete.  (Mass.)  452;  Morse  v.  Brackett,  98  Mass.  205,  104  Mass.  494;  Mansfield 
V.  Trigg,  113  Mass.  350. 

i»  Benj.  Sales,  §  428  et  seq. 


112  MISTAKE,   FAILURE    OF    COKSIDEUATION,   AND    FUAUD.  [Ch.   5 

Fiaud  is  commonly  said  to  be  so  subtle  in  its  nature  aad  mani- 
fold in  its  forms  as  to  be  impossible  of  definition.  Nevertheless 
the  statement  of  its  essential  characteristics  which  has  been  given 
above  in  the  langua^^e  of  Sir  William  R.  Anson  ^°  sufficiently  indi- 
cates the  nature  of  such  fraud  as  will  render  voidable  a  contract  of 
sale.  The  same  state  of  facts  which  is  ground  for  avoidance 
also  gives  rise  to  an  action  at  common  law  for  deceit,  in  which  the 
defrauded  party  may  recover  such  damages  as  he  has  suffered 
by  reason  of  the  false  representation.  And  a  practical  test  of 
fraud,  as  opposed  to  misrepresentation  which  is  not  fraudulent,  is 
that  the  first  does,  and  the  second  does  not,  give  rise  to  an  action 
ex  delicto.^  ^ 
Fraud  ta  a  Fake  Representation. 

A  mistaken  belief  in  the  facts  may  be  created  by  active  means, 
as  by  fraudulent  concealment  or  misrepresentation,  or  passively,  by 
mere  nondisclosure.  But  it  is  only  when  a  man  is  under  some 
obligation  to  disclose  facts  that  mere  silence  w-ill  be  considered  as 
a  means  of  deception.  In  contracts  of  sale,  disclosure  is  not  ordi- 
narily incumbent  on  the  parties.^^  The  rule  is  caveat  emptor.  It 
has  even  been  held  that  the  seller  is  under  no  obligation  to  com- 
municate the  existence  of  latent  defects,  such  as  a  hidden  disease  in 
an  animal,  unless  by  act  or  implication  he  represents  such  defects 
not  to  exist;  ^^  but  it  is  generally  held  in  this  country  that  the  in- 
tentional nondisclosure  of  such  a  defect  by  the  seller,  when  he 
knows  that  it  is  unknown  to  the  buyer,  is  fraudulent.'*  On  the 
other  hand,  the  buyer  is  not  bound  to  disclose  to  the  seller  facts 

20  Anson,  Cont.  145.  His  discussion  of  fraud  has  been  closely  followed. 
And  see  Clark,  Cont.  324. 

21  Anson,  Cont.  129;   Clark,  Cont.  324. 

22  Smith  V.  Hughes,  L.  R.  6  Q.  B.  597;  Laidlaw  v.  Organ,  2  Wheat.  178; 
People's  Bank  v.  Bogart,  81  N.  Y.  101;  Kiutzing  v.  McElrath,  5  Pa.  St.  467; 
Cogel  V.  Kniseley,  89  111.  598. 

23  Ward  V.  Hobbs,  3  Q.  B.  Div.  150,  4  App.  Cas.  13;  Beninger  v.  Corwin.  24 
N.  J.  Law,  257;   Paul  v.  Hadley,  23  Barb.  521;   Morris  v.  Thompson,  85  111.  16. 

24  Paddock  v.  Strobridge,  29  Vt.  471;  Maynard  v.  Maynard,  49  Vt.  297; 
Jeffrey  v.  Bigelow,  13  Wend.  518;  Hanson  v.  Edgerly,  29  N.  H.  343;  Barron 
V.  Alexander,  27  Mo.  530;  Grigsby  v.  Stapleton,  94  Mo.  423,  7  S.  W.  421; 
Cardwell  v.  McClelland,  3  Sneed,  150;  Armstrong  v.  Huffstatler,  19  Ala.  51; 
Marsh  v.  Webber,  13  Minn.  109  (Gil.  99);  Turner  v.  Huggins,  14  Ark  21: 
Dowling  V.  Lawrence,  58  Wis.  282,  16  N.  W.  552;    Stewart  v.  Wyoming  Cat- 


Ch.  5]  FRAUD.  113 

as  to  which  information  is  equally  open  to  both;  for  example,  facts 
which  would  enhance  the  price. '^^  As  a  rule,  to  charge  a  party  to 
a  contract  of  sale  with  fraud,  there  must  be  some  active  attempt  to 
deceive  either  by  statement  which  is  false,  or, at  least,  by  representa- 
tion which,  though  true  as  far  as  it  goes,  is  accomDanied  by  such 
a  suppression  of  the  facts  as  to  convey  a  misleading  impression.^* 
If  the  buyer  wishes  to  protect  himself  further,  he  must  require  of 
the  seller  a  warranty  of  any  matter  the  risk  of  which  he  is  unwilling 
to  assume.^^  Any  device,  however,  used  by  the  seller  to  induce 
the  buyer  to  omit  inquiry  or  examination  into  defects,  is  as  much 
a  fraud  as  active  concealment.*® 
The  Representation  must  be  of  Fact. 

Fact  is  here  used  in  distinction  from  opinion,  intention,  and  law- 
Same — Not  Matter  of  Opinion. 

A  mere  representation  of  opinion  which  turns  out  to  be  unfounded 
will  not  invalidate  a  contract.*®  Thus  statements  of  value  are 
generally  immaterial, •''°  though  representations  of  facts  affecting  the 
value,^^  for  example  that  a  third  person  gave  so  much  for  a  thiug,^* 

tie  Ranche  Co.,  128  U.  S.  383,  388,  9  Sup.  Ct.  101;  Clark,  Cont.  329,  and  cases 
there  cited- 

2  5  Fox  V.  Mackreth,  2  Brown,  C.  C.  400;  Turner  v.  Harvey,  Jac.  170,  per 
Lord  Eldon;  Laidlaw  v.  Organ,  2  Wheat.  178;  Blydenburgh  v.  Welsh, 
Baldw.  331,  Fed.  Cas.  No.  1,583;  Kintzing  v,  McElrath,  5  Pa.  St.  467. 

2  6  Peek  V.  Gurney,  L,  R.  6  H.  L.  377,  403,  per  Lord  Cairns;  Newell  v.  Ran- 
dall, 32  INIinn.  171,  19  N.  W.  972;  Chamberlin  v.  Fuller,  59  Vt.  247,  9  Atl.  832^ 
Clark,  Cont.  326,  and  cases  cited. 

27  Veasey  v.  Doton,  3  Allen,  380,  381;   Morrison  v.  Koch,  32  Wis.  254,  261. 

2  8  Matthews  v.  Bliss,  22  Pick.  48,  52;  Smith  v.  Countryman,  30  N.  Y.  66a, 
681;  Roseman  v.  Canovan,  43  Cal.  110;  Croyle  v.  Moses,  90  Pa.  St.  250; 
Clark,  Cont.  328,  and  cases  cited. 

28  Belcher  v.  Costello,  122  Mass.  189;  Homer  v.  Perkins,  124  Mass.  431; 
Holbrook  v.  Connor,  60  Me.  578;  Lyons  v.  Briggs.  14  R.  I.  222;  Watts  v. 
Cummins,  59  Pa,  St.  84;  Buschman  v.  Codd,  52  Md.  207,  Clark,  Cont.  331» 
and  cases  cited. 

30  Gordon  v.  Butler,  105  U.  S,  553;  Poland  v,  Brownell,  131  Mass.  138; 
Uhler  V.  Semple,  20  N.  J.  Eq.  288;  Schramm  v.  O'Connor,  98  111.  539; 
Kennedy  v.  Richardson,  70  Ind.  524. 

3  1  Chrysler  v.  Canaday,  90  N.  H.  272,  278;  Collins  v.  Jackson,  54  Mich. 
186,  19  N.  W.  947;   Coolidge  v.  Goddard,  77  Me.  .578,  1  Atl.  831. 

82  Belcher  y.   Costello,  122  Mass.  189.    Market  value:    Manning  v.  Albee, 


114  MISTAKE,   FAILURE    OF    CONSIDERATION,   AND    FRAUD.  [Ch.   5 

are  material.  B3'  a  somewhat  fine  distinctiou,  liowever,  state- 
ments of  what  the  seller  gave  or  was  offered  for  the  thing  sold 
are  by  some  courts  deemed  to  be  mere  statements  of  value,  on 
which  the  buyer  is  not  entitled  to  rely.^^  In  like  manner,  com- 
mendatory expressions,  such  as  men  habitually  use  to  induce  others 
to  enter  into  a  bargain,  known  as  "dealer's  talk,"  are  not  deemed 
representations  of  fact.**  Simplex  commendatio  non  obligat  The 
line  between  fact  and  opinion  is  a  narrow  one,  and,  when  a  state- 
ment may  be  taken  in  either  sense,  it  is  for  the  jury  to  determine 
which  it  is.*" 
Same — Not  Matter  of  Intention — Intention  not  to  Pay. 

Again,  an  expression  of  intention  does  not  amount  to  a  statement 
of  fact,  nor  does  a  promise;  and  a  representation  that  a  thing 
is  must  be  distinguished  from  a  promise  that  it  shall  be.*'  Yet 
there  is  a  distinction  between  a  promise  which  the  promisor  intends 
to  perform  and  one  which  he  intends  to  break.  In  the  first  place, 
he  represents  his  intention  that  something  shall  take  place  in  the 
future;  in  the  second  case,  he  not  only  makes  a  promise  which  is 
ultimately  broken,  but  he  represents  his  existing  intention, — that 
is,  he  represents  his  state  of  mind  to  be  other  than  it  really  is.*^ 
And  accordingly  it  is  held  that  if  a  man  buys  goods  on  credit 
not  intending  to  pay  for  them,  he  makes  a  fraudulent  misrepresen- 
tation, and  that  the  seller  may  rescind  the  sale.** 

11  Allen,  520;  Richardson  v.  Noble,  77  Me.  390.  Contra,  Graffensteln  v. 
Epstein,  23  Kan.  443.  See,  also,  Ives  v.  Carter,  24  Conn.  392;  Somers  v. 
Richards,  46  Vt  170. 

33  Medbury  v.  Watson,  6  Mete.  (Mass.)  249,  259;  Hemmer  v.  Cooper,  8 
Allen,  334;  Holbrook  v.  Connor,  60  Me.  578.  Contra,  Sandford  v.  Handy, 
23  Wend.  260;  Van  Epps  v.  HaiTison,  5  Hill,  63.  See,  also.  Page  v.  Parker, 
43  N.  H.  363,  368;  Smith  v.  Countryman,  30  N.  Y.  655;  Kenner  v.  Harding. 
85  111.  264.    See  Clark,  Cont.  334. 

34  Morse  v.  Shaw,  124  Mass.  59;  Teague  v.  Irwin,  127  Mass.  217;  Sledge 
V.  Scott,  56  Ala.  202;   Jackson  v.  Collins,  39  Mich.  557,  561. 

86  Homer  v.  Perkins,  124  Mass.  431,  ■i.i'.i;  Kimball  v.  Bangs,  144  Mass. 
321,  11  N.  E.  113;    Dawson  v.  Graham,  48  Iowa,  378. 

3  6  Long  v.  Woodman,  58  Me.  49;   Clark,  Cont.  332,  and  cases  there  cited. 

8  7  Anson,  Cont.  148;    Clark,  Cont.  333. 

88  Load  V.  Green,  15  Mees.  &  W.  216;  Ferguson  v.  Carrington,  9  Barn, 
&  C  59;  Donaldson  v.  Farwell,  93  U.  S.  631;  Byrd  v.  Hall,  *41  N.  Y.  646; 
.Johnson  v.  Monell,  Id.  655;    Stewart  v.  Emerson,   52  N.   H.  301;    Dow  r. 


Ch.   5]  FRAUD.  115 

Sa.iie — Not  Matter  of  Law. 

Fiuallj,  a  misrepresentation  of  law  does  not  ordinarily  give  rise 
to  an  action  of  deceit  or  make  a  contract  voidable.'* 
Vi^  Representation  mtist  be  Made  with  Knowledge  of  It»  Falsity,  or  in  Reckless 

Disregard  of  the  Truth. 

A  false  statement  made  by  one  who  believes  the  truth  of  what 
he  asserts,  though  it  may  warrant  avoidance  for  mistake,***  or 
may  amount  to  a  warranty  or  condition,*^  is  not  fraudulent.**  A 
representation  to  be  fraudulent  must  not  only  be  false,  but  it  must 
be  made  with  knowledge  of  its  falsity,**  or  at  least  without  belief 
in  ita  truth.     The  mere  absence  of  belief  is  enough;  for,  if  a  man 

Sanborn,  3  Allen,  181;  Parker  v.  Byrnes,  1  Low.  539,  Fed.  Cas.  No.  10,728 
Burrill  v.  Stevens,  73  Me.  395;  Stoutenbourgh  v.  Konkle,  15  N.  J.  Eq.  33 
Powell  V.  Bradlee,  9  Gill  &  J.  220;  Shipman  v.  Seymour,  40  Mich.  274,  283 
Talcott  V.  Henderson,  31  Ohio  St.  1G2;  Allen  v.  Hartfield,  76  111.  358;  Far 
well  V.  Hanchett,  120  111.  573,  11  N.  E.  875;  Fox  v.  Webster,  46  Mo.  181 
Lane  v.  Robinson,  18  B.  Mon.  623;  Belding  v.  Frankland,  8  Lea,  67;  Os- 
wego Starch  Factory  v.  Lendrum,  57  Iowa,  573,  10  N.  W.  900.  In  Penn- 
sylvania it  is  held  that  insolvency  and  the  knowledge  of  it  are  not  suffi- 
cient, but  that  there  must  be  artifice,  trick,  or  false  pretense  to  avoid  the 
sale.  Smith  v.  Smith,  21  Pa.  St  367;  Rodman  v.  Thalheimer,  75  Pa.  St. 
232;  Bughman  v.  Central  Bank,  159  Pa.  St.  94,  28  Atl.  209.  And  in  Ala- 
bama it  is  held  that  there  must  be  fraudulent  concealment  or  representa- 
tion. Le  Grand  v.  Eufaula  Nat.  Bank,  81  Ala.  123,  1  South.  460.  See,  also, 
Wilson  V.  White,  80  N.  C.  280.    And  see  Clark,  Cont.  327. 

39  Upton  V.  Tribilcock,  91  U.  S.  45,  49;  Starr  v.  Bennett,  5  Hill,  303;  Town- 
send  V.  Cowles,  31  Ala.  428;  Fish  v.  Cleland,  33  111.  237;  Clem  v.  Newcastle 
&  D.  R.  Co.,  9  Ind.  4S8;  People  v.  Board  of  Sup'rs,  27  Cal.  655;  Clark,  Cont 
333,  and  cases  cited. 

40  Ante,  p.  28  et  seq. 

41  Post,  p.  150  et  seq. 

42  Benj.  Sales,  §  429;    Clark,  Cont.  338. 

43  Collins  V.  Evans,  5  Q.  B.  820;  Ormrod  v.  Huth,  14  Mees.  &  W.  651; 
Lord  V.  Goddard,  13  How.  198;  King  v.  Eagle  Mills,  10  Allen,  548;  Petti- 
grew  V.  Chellis,  41  N.  H.  95;  Allen  v.  Wanamaker,  31  N.  J.  Law,  370;  Big- 
ler  V.  Flickinger,  55  Pa.  St.  279;  Lamm  v.  Port  Deposit  H.  Ass'n,  49  Md. 
233;  Mason  v.  Chappell,  15  Grat.  572;  Kimbell  v.  Moreland,  55  Ga.  164; 
Parmlee  v.  Adolph,  28  Ohio  St  10;  Tone  v.  Wilson,  81  111.  529;  Gregory  v, 
Schoenell,  55  Ind,  101;  Rawson  v.  Harger,  48  Iowa,  269;  Mamlock  v.  Fair- 
banks, 46  Wis.  415,  1  N.  W.  167;  Merriam  v.  Pine  City  Lumber  Co.,  23 
Minn.  314;  Rightor  v.  Roller,  31  Ark.  171;  Clark,  Cont  338. 


116  MISTAKE,   FAILURE    OF    CONSIDERATION,   AND    FRAUD.  [Cll.   5 

states  as  true  that  of  which  he  is  ij^norant,  he  must  be  held  as 
respousible  as  if  he  had  asserted  what  he  knew  to  be  untrue.  There- 
fore, if  a  man  in  reckless  disregard  of  the  truth  makes  a  statement 
which  is  actually  false,  his  liability  is  the  same  as  if  he  knew  it 
was  false;  **  and,  if  he  represents  a  fact  as  true  of  his  own  knowl- 
edge when  he  has  no  knowledge,  it  is  immaterial  that  he  believed  it 
to  be  true.*' 
Motive. 

If  the  representation  was  fraudulent  as  the  term  has  above  been 
explained,  it  is  immaterial  that  the  motive  was  innocent*" 

<*  Western  Bank  of  Scotland  v.  Addie,  L.  R.  1  H.  L.  Sc.  145;  Reese 
River  Silver  Min.  Co.  v.  Smith,  L.  R.  4  H.  L.  64;  Weir  v.  Bell,  3  Exch.  Dlv. 
238.  242;  Nettleton  v.  Beach,  107  Mass.  499;  Fisher  v.  Mellen,  103  Mass. 
503;  Cole  v.  Cassidy,  138  Mass,  437;  Hammond  v.  Pennock,  Gl  N.  Y.  145; 
Meyer  v.  Amidon,  45  N.  Y.  169;  Bower  v.  Fenn,  90  Pa.  St.  359;  Cowley  v. 
Smyth,  46  N.  J.  Law.  380;  Smith  v.  Newton,  59  Ga.  113;  Foard  v.  McComb, 
12  Bush,  723;  Freuzel  v.  Miller,  37  Ind.  1;  Parmlee  v.  Adolph,  28  Ohio  St. 
10;  Cotzhausen  v.  Simon,  47  Wis.  103.  1  N.  W.  473;  Walsh  v,  Morse,  80 
Mo.  509.  It  was  formerly  held  that  a  false  representation,  though  the  party 
making  It  was  charged  neither  with  fraud  nor  negligence,  was  actionable. 
Evans  v.  Collins,  5  Q.  B.  804.  To  such  a  misrepresentation  the  term  "legal 
fraud"  or  "constructive  fraud,"  as  opposed  to  "moral  fi-aud,"  was  applied, 
but  in  the  present  state  of  the  law  the  term  "legal  fraud"  has  become 
meaningless.  The  term  was  condemned  by  Bramwell,  L.  J.,  in  Weir  v.  Bell, 
3  Exch.  Div.  238,  242,  in  which  case,  after  saying  that  moral  fraud  must  be 
proved,  he  observes:  "I  do  not  understand  legal  fraud.  It  has  no  more 
meaning  than  legal  heat  or  legal  cold,  legal  light  or  legal  shade.  There 
never  can  be  a  well-founded  complaint  of  legal  fraud,  or  of  anything  else, 
except  where  some  duty  is  shown,  and  correlative  right,  and  some  violation 
of  that  duty  and  right.  And,  when  these  exist,  It  Is  much  better  that  they 
should  be  stated  and  acted  on  than  that  recourse  should  be  had  to  a  phrase 
illogical  and  unmeaning,  with  the  consequent  uncertainty."  See  Clark,  Cont. 
338. 

*8  Litchfield  v.  Hutchinson,  117  Mass.  195;  Cabot  v.  Christie,  42  Vt.  121; 
Marsh  v.  Falker,  40  N.  Y.  562;  Dulaney  v.  Rogers,  64  Mo.  201;  Clark,  Cont. 
339. 

48  Polhill  V.  Walter,  3  Barn.  &  Adol.  114;  Peek  v.  Gurney,  L.  R.  6  H.  L. 
409;  Hammond  v.  Pennock,  61  N.  Y.  145;  Cowley  v.  Smyth,  46  N.  J.  Law, 
380;    Clark,  Cont.  343. 


Ch.   5]  FRAUD.  117 

The  Representation  mvM  have  been  Made  with  the  Intention  that  It  should  be 

Acted  On. 

Another  statement  of  this  rule  is  that  the  representation  must 
be  made  as  part  of  the  same  transaction.*^  Therefore,  if  a  rep- 
resentation is  made  by  one  of  the  parties  to  the  contract,  the  inten- 
tion that  it  should  be  acted  on  will  generally  be  manifest.  It  is  in 
cases  where  the  representation  has  caused  injury  to  a  third  person 
that  the  question  of  such  ir  tention  will  generally  arise.  That  a  repre- 
sentation, in  order  to  give  grounds  for  an  action  of  deceit,  need  not 
be  made  directly  to  the  injured  party  is  well  settled.*^  Thus  where 
the  defendant  sold  a  gun  to  the  father  of  the  plaintiff  for  the  use 
of  the  buyer  and  his  sons,  falsely  representing  that  it  was  safe, 
and  the  plaintiff  used  it  and  it  exploded  and  injured  him,  it  was 
held  that  he  could  recover.*"  But  in  such  cases  it  must  appear 
that  the  representation  was  made  with  the  intention  that  it  should 
be  acted  upon  by  such  third  person  in  the  manner  that  occasioned 
the  injury. '*°  The  right  of  action  is  based  solely  on  tort,  for  no 
action  can  be  maintained  on  the  contract  except  by  parties  and 
proxies."^' 
The  Representation  must  be  Material  and  must  Induce  the  Sale. 

A  material  representation  is  one  which  would  affect  the  judgment 
of  a  reasonable  man  governing  himself  by  the  principles  on  which 
men  in  practice  act  in  the  kind  of  business  on  hand."  If  such  an 
untrue  statement  has  been  made  and  was  in  fact  an  inducement 
to  the  other  party  to  enter  into  the  contract,  it  is  unimportant 
that  it  was  not  the  sole  inducement;  but  it  is  enough  if  it  was  a 
material  element  in  iulluenciug  him  to  enter  into  if^      Moreover, 

4T  Pol.  Cont  533. 

*8  Barry  v.  Croskey,  2  Johns.  &  H.  1,.  17,  per  Wood,  V.  O.,  at  page  22; 
Langridge  v.  Levy,  2  Mees.  &  W.  519;  Peek  v.  Gurney,  L.  R.  6  H.  L.  377; 
Wells  V.  Cook,  16  Ohio  St  67;  Bank  of  Montreal  v.  Thayer,  7  Fed.  623; 
Clark,  Cont.  341. 

*9  Langridge  v.  Levy,  2  Mees.  &  W.  519. 

80  Cases  cited  In  note  48. 

61  Gerhard  v.  Bates,  2  El.  &  Bl.  476,  22  Law  J.  Q.  B.  364. 

»a  Pol.  Cont.  528. 

B8  Safford  v.  Grout,  120  Mass.  20;  McAleer  v.  Horsey,  35  Md.  439;  Ruff 
T.  Jarrett,  94  111.  475;  Moline-Milbum  Co.  y.  Franklin,  37  Minn,  137,  83  ^. 
W.  323;    Clark,  Cont  344. 


118  MISTAKE,   FAILURE    OF    CONSIDERATION,  AND    FRAUD.  [Ch.  5 

if  the  representation  was  such  tliat  it  might  induce  the  other 
party  to  enter  into  the  contract  on  the  faith  of  it,  he  will  be  pre- 
sumed to  have  acted  in  reliance  upon  it"  And,  if  he  actually  relies 
upon  the  representation,  the  fact  that  he  had  means  of  knowledge 
which,  if  used,  would  have  led  to  a  discovery  of  the  untinith  will 
not  bar  him  of  his  remedy."' 

But,  however  false  or  dishonest  the  representations  may  be 
which  are  used  to  induce  a  party  to  enter  into  a  contract,  they  do 
not  constitute  a  fraud  if  he  is  not  deceived;  for  under  such  circum- 
stances the  inducement  or  motive  is  not  the  representations,  which 
are  not  believed,  but  some  independent  motive.''*  The  represen- 
tations must  be  relied  upon."  For  the  same  reason,  if  the  at- 
tempted fraud  does  not  come  to  the  knowledge  of  the  other  party, 
it  will  not  avail  him  in  avoidance  of  the  contract.  Thus  where 
the  seller  inserted  a  metal  plug  to  conceal  a  weak  spot  in  a  gun 
manufactured  to  the  order  of  the  buyer,  who  took  it  without  in- 
spection, it  was  held  that  the  attempted  fraud  did  not  exonerate 
him  from  paying  for  the  gun;  since,  although  the  seller  intended 
to  deceive  him,  he  had  in  fact  not  been  deceived.^^  If  the  action 
is  for  deceit,  damages  from  the  fraud  must  be  proved." 

6  4  Redgrave  v.  Hurd,  20  Ch.  Div.  1;  Holbrook  v.  Burt,  22  Pick.  546;  Hicks 
T.  Stevens,  121  111.  186,  11  N.  E.  241. 

6B  Redgrave  v.  Hurd,  20  Ch.  Div.  1;  Jackson  v.  Collins,  39  Mich.  557; 
Kendall  v.  Wilson,  41  Vt.  567;  Stewart  v.  Stearns,  63  N.  H.  99;  Union  Nat. 
Bank  v.  Hunt.  7G  Mo.  439;   Clark,  Cont.  330. 

6  8  Gunby  v.  Sluter,  44  Md.  237;  Phipps  v.  Buckman,  30  Pa.  St.  401;  Greg- 
ory V.  Schoenell,  55  Ind.  101;  Sledge  v.  Scott,  56  Ala.  202;  Smith  v.  Newton, 
59  Ga.  113.  If  the  buyer  accepts  the  goods  with  knowledge  of  the  fraud,  he 
cannot  repudiate  the  contract.  Baird  v.  Mayor,  etc.,  of  New  York,  96  N.  Y. 
567;   Thompson  v.  Libby,  36  Minn.  287,  31  N.  W    52. 

6T  Ming  V.  Woolfolk,  116  U.  S.  599,  6  Sup.  Ct  489;  Hanna  v.  Rayburn,  84 
111.  533;   Holdom  v.  Ayer,  110  111.  448;   Clark,  Cont.  344. 

68  Horsfall  v.  Thomas,  1  Hurl.  &  C.  90.  See  remarks  on  this  case  in 
Anson,  Cont  152. 

6  9  Pasley  v.  Freeman,  8  Term  R.  51;  2  Smith,  Lead.  Cas.  (8th  Ed.)  66; 
Brown  v.  Blunt,  72  Me.  415;   Weaver  v.  Wallace,  9  N.  J.  Law,  251. 


Ch.  6]  FRAUD.  119 

SAME— ELECTION  TO   A.FFIRM  OR  RESCIND  FOR  FRAUD. 

62.  The  defrauded  party  may: 

(a)  Affirm  the  contract. 

(b)  Rescind  the  contract  -within  a  reasonable  time 

after  discovery  of  the  fraud,  unless  it  has 
become  impossible  to  restore  the  other  party 
to  the  condition  in  which  he  would  have 
been  if  the  contract  had  not  been  made,  or 
unless  a  third  person  has  in  good  faith  and 
for  value  acquired  an  interest  in  the  goods. 

63.  The  contract  must  be  afiBLrmed  or  rescinded  in  toto, 
and  the  election  once  exercised  is  final. 

64.  If  the  defrauded  party  afidrm,  he  may  recover  dam- 
ages for  the  fraud  in  an  action  of  deceit,  or,  if  sued  for 
the  price,  he  may  set  up  the  fraud  in  reduction  thereof. 

65.  If  the  defrauded  party  rescind,  he  may: 

(a)  Set  up  the  rescission  in  defense   of  an  action 

on  the  contract. 

(b)  If  he  be  the  buyer  and  has  paid  the  price,  he 

may  maintain  an  action  to  recover  the 
amount.  If  he  be  the  seller,  and  has  deliv- 
ered the  goods,  he  may  maintain  an  action 
of  trover  or  replevin. 

66.  A  bona  fide  purchaser  for  value  from  the  fraudulent 
buyer  acquires  an  indefeasible  title. 

A  contract  induced  by  fraud  is  not  void,  but  only  voidable,  at  the  op- 
tion of  the  party  defrauded;  in  other  words,  it  is  valid  until  rescinded. 
It  is  for  the  party  defrauded  to  elect  whether  he  will  be  bound.®** 
But,  if  he  affirms  the  contract,  he  must  affirm  it  in  all  its  terms. 
Thus  a  seller  who  has  been  induced  by  fraud  to  sell  on  credit  cannot 
sue  on  the  contract  price  before  the  expiration  of  the  credit,  but 

60  Rawlius  V.  Wickham,  3  De  Gex  &  J.  304,  322;  Clough  v.  London  &  N. 
W.  Ry.  Co.,  L.  R.  7  Exch.  2G;   Clark,  Cont.  346. 


120  MISTAKE,  FAILURE    OF    CONSIDERATION,   AND    FRAUD.  [Ch.   5 

must  rescind,  and  sue  in  trover  or  replevin."^  T\Tien  the  contract 
is  once  affirmed,  the  election  is  completely  determined. ^^  After 
affirmance,  the  sole  remedy  of  the  defrauded  party  for  the  fraud 
is  by  way  of  damages,  which  he  may  recover  in  an  action  of  deceit; 
or,  if  he  be  the  buyer,  he  may  set  up  the  fraud  by  way  of  recoupment 
in  an  action  by  the  seller  for  the  price.""  It  is  not  necessary  that 
the  affirmance  should  be  express.  Any  acts  which  unequivocally 
treat  the  contract  as  subsisting,  such  as  dealing  with  the  goods 
as  his  own  on  the  part  of  the  buyer  or  taking  security  for  the  price 
on  the  part  of  the  seller,  will  have  the  same  effect.'*  Bringing  suit 
on  the  contract  is  a  conclusive  affirmance.®'  Bringing  an  action 
for  deceit,  if  the  buyer  retains  the  goods,  and  asks  damages  for  the 
difference  between  the  goods  as  represented  and  as  they  actually 
were,  is  an  affirmance.®'     Where  the  election  to  affirm  has  once 

«i  Ferguson  v.  Can-in^ton,  9  Bam,  &  C.  59;  Emma  Silver  Min.  Co.  v. 
Emma  Silver  Min.  Co.  of  New  York,  7  Fed.  401;  Adler  v.  Fenton,  24  How. 
407;  Butler  v.  Hildreth,  5  Mete,  (Mass.)  49;  Dellone  v.  Hull,  47  Md.  112; 
Stewart  v.  Emerson,  52  N.  H.  301,  310;  Bulkley  v.  Morgan,  46  Conn.  393; 
Kellogg  V.  Turpie.  93  111.  2G5;  Stoutenbourgh  v.  Konkle,  15  N.  J.  Eq.  33; 
Weed  V.  Page,  7  Wis.  503.  Otherwise  in  New  York,  where  it  is  held  that 
the  seller  may  waive  the  tort,  and  sue  in  assumpsit.  Wigand  v.  Sichel, 
*42  N.  Y.  120;  Roth  v.  Palmer,  27  Barb.  652.  See,  also,  Dietz  v.  Sutcliffe, 
80  Ky.  650. 

8  2  Clough  V.  London  &  N.  W.  Ry.  Co.,  L.  R.  7  Exch.  26,  34;  Moller  v. 
Tuska,  87  N.  Y.  166;   Pence  v.  Langdon,  99  U.  S.  578,  582. 

83  Harrington  v.  Stratton,  22  Pick.  510;  Perley  v.  Balch,  23  Pick.  283; 
Foulk  V.  Eckert,  61  111.  318. 

64  Clough  V.  London  &  N.  W.  Ry.  Co.,  L.  R.  7  Exch.  26,  34;  Grymes  v. 
Sanders,  93  U.  S.  55,  62;  Joslin  v.  Gowee,  52  N.  Y.  90;  Seavy  v.  Potter,  121 
Mass.  297;  Cross  v.  Hayes,  45  N.  J.  Law,  565;  Davis  v.  Betz,  66  Ala.  206; 
Evans  v.  Montgomery,  50  Iowa,  325,  337;   Bridgeford  v.  Adams,  45  Ark.  136. 

86  Cases  cited  in  note  61,  supra.  But  obtaining  judgment  in  ignorance  ot 
the  fraud  does  not  amount  to  an  affirmance.  Clough  v.  London  &  N.  W. 
Ry.  Co.,  L.  R.  7  Exch.  26,  35;  Kraus  v.  Thompson,  30  Minn.  64,  14  N.  W.  268. 

66  Emma  Silver  Min.  Co.  v.  Emma  Silver  Min.  Co.  of  New  York,  7  Fed 
401,  402.  It  has  indeed  been  laid  down  broadly  that  bringing  action  for 
deceit  affirms  the  sale.  Kimball  v.  Cunningham,  4  Mass.  505.  Cf.  White- 
side v.  Brawley,  152  Mass.  133,  134,  24  N.  E.  1088.  But  the  action  for  deceit 
does  not  necessarily  imply  an  affirmance,  as  where  the  seller  reclaims  such 
goods  as  he  can  reach,  and  as  to  the  remainder  sues  the  buyer  to  recover 
damages  for  the  fraud.    Hersey  v.  Benedict,  15  Hun,  282.    See,  also,  Hub 


€h.  5]  FRAUD.  121 

been  exercised,  the  subsequent  discovery  of  a  new  incident  in  the 
fraud  will  not  revive  the  right  to  rescind.^^ 

If,  on  the  other  hand,  the  defrauded  party  elects  to  rescind,  he 
must  manifest  his  election  by  distinctly  communicating  to  the 
other  party  his  intention  to  repudiate  the  contract.®*  It  is  not  nec- 
•essary  to  a  rescission  that  the  contract  should  be  judicially  set 
aside.®®  Thus,  if  the  defrauded  party  be  the  buyer,  he  may  refuse 
to  accept  the  goods  if  he  discover  the  fraud  before  delivery,  or 
may  return  them  if  the  discovery  be  not  made  till  after  delivery; 
and,  if  he  has  paid  the  price,  he  may  recover  it  back  on  offering  to 
return  the  goods.^°  On  the  other  hand,  the  defrauded  party  may 
€et  up  the  rescission  as  a  defense  in  an  action  by  the  other  on  the 
contract;  ^^  or  he  may,  if  the  remedy  at  law  is  inadequate,  insti- 
tute proceedings  in  equity  to  have  the  contract  set  aside.'"  Elec- 
tion to  rescind  waives  the  right  to  sue  on  the  contract^* 
Restitutio  in  Integrum. 

The  right  of  a  party  to  rescind  for  fraud,  as  for  other  causes,  is 
<;onditional  upon  his  restoring  the  other  party  to  the  position  in 
which  he  was  before  the  contract  Thus  the  seller  must  return 
or  offer  to  return  the  price,  and  the  buyer  must  return  or  offer  to 
return  the  goods, ^*  though  he  need  not  do  so  if  they  are  absolutely 

bell  V.  Meigs,  50  N.  Y.  480,  487;    Miller  v.  Barber,  66  N.  Y.  558,  564;    Lenox 
V.  Fuller,  39  Mich.  268. 

67  Campbell  v.  Fleming,  1  Adol.  &  E.  40;  Pratt  v.  Philbrook,  41  Me.  132. 
But  see  Pierce  v.  Wilson,  34  Ala.  596. 

6  8  Ashley's  Case,  L.  R.  9  Eq.  263;  Hammond  v.  Pennock,  61  N.  Y.  145, 
155;  Potter  v.  Taggart,  54  Wis.  395,  400,  11  N.  W.  678;  Gates  v.  Bliss, 
43  Vt.  299. 

6»  Reese  River  Silver  Min.  Co.  v.  Smith,  L.  R.  4  H.  L.  64,  73. 

7  0  Clarke  v.  Dickson,  El.  Bl.  &  El.  148;  Coolidge  v.  Brigham,  1  Mete. 
(Mass.)  547.    See,  also,  cases  cited  in  note  56,  ante. 

71  Clough  v.  London  &  N.  W.  Ry.  Co.,  L.  R.  7  Bxch.  26,  36. 

7  2  Anson,  Cent  154;   Clark,  Cont.  348;   Fetter,  Eq.  130. 

7  8  Farwell  v.  Myers,  59  Mich.  179,  26  N.  W.  328;  Wright  v.  Zeigler,  70 
Oa.  501.    Cf.   Powers  v.  Benedict,  88  N.  Y.  605. 

74  Clarke  v.  Dickson,  El.  Bl.  &  El.  148;  Grymes  v.  Sanders,  93  U.  S.  55; 
Kimball  v.  Cunningham,  4  Mass.  502;  Thayer  v.  Turner,  8  Mete.  (Mass.) 
550;  Cook  v.  Gilman,  34  N.  H.  560;  Hammond  v.  Buckmaster,  22  Vt.  375; 
Tisdale  v.  Buckmore,  33  Me.  461;   Burton  v.  Stewart,  3  Wend.  236;   Masson 


122  MISTAKE,  FAILURE   OF   CONSIDERATION,   AND    FRAUD.  [Cll,  5 

worthless.'"  Accordingly,  if  the  buyer  has  consumed  or  sold  any 
part  of  the  goods,  he  cannot  rescind;  though,  if  he  is  the  guilty 
party,  he  cannot  prevent  a  rescission  if  the  seller  elects  to  talce  a 
partial  restoration,' •  But  mere  depreciation  in  value  of  the  thing 
sold  before  the  buyer's  discovery  of  the  fraud  will  not  defeat 
rescission  on  his  part.'"'  And  if  in  the  meantime  he  has  incurred 
expenses  for  repairs  he  may  on  rescission  and  return  recover  the 
cost,'^^  but  if  he  is  the  guilty  party  he  cannot  exact  a  payment  of 
such  cost  as  a  condition  of  rescission. ''' 
Bona  Fide  Purchasers  from  Fraudulent  Buyer. 

It  follows  from  the  principle  that  the  contract  is  voidable,  and 
not  void,  that,  when  innocent  third  persons  have  for  value  acquired 
rights  under  the  sale,  their  rights  are  indefeasible.  The  rule  is 
also  stated  to  be  an  application  of  the  principle  of  convenience  that, 
when  one  of  two  innocent  parties  must  suffer  from  the  fraud  of  a 
third,  the  loss  should  fall  on  the  one  who  enabled  the  third  party 
to  commit  the  fraud.""  Thus,  when  a  sale  is  procured  by  fraud, 
the  property  in  the  goods  is  transferred  by  the  contract,  subject 
to  the  seller's  right  of  rescission,  and  a  purchaser  in  good  faith 
from  the  fraudulent  buyer  before  the  sale  is  rescinded  acquires  a 
good  title.*^     The  purchase  must  be  for  value,  and  hence  the  pro- 

V.  Bovet,  1  Denio,  69;  Babcock  v.  Case,  61  Pa.  St.  427;  Haase  v.  Mitchell, 
58  Ind.  213;   Herman  v.  Haffenegger,  54  Cal.  161;   Clark.  Cont.  350. 

TBKent  V.  Borastein,  12  Allen,  342;  Brewster  v.  Burnett,  125  Mass.  68: 
Smith  V.  Smith,  30  Vt.  139;   Dill  v.  O'Ferrall,  45  Ind  268;    Clark,  Cont.  351. 

7  6  Hammond  v.  Pennock,  61  N.  Y.  145;   Harper  v.  Terry,  70  Ind.  264. 

T7  Veazie  v.  Williams,  8  How.  134,  158;  Neblett  v.  Macfarland,  92  U,  S. 
101,  104;    Clark,  Cont  352. 

7  8  Canada  v.  Canada,  6  Cush.  15;  Farris  v.  Ware,  60  Me.  482;  Clark,  CJont 
B52. 

7»  Guckenheimer  v.  Angevine,  81  N.  Y.  394;  Chamberlin  t.  Fuller,  59  Vt 
247,  9  Atl.  832. 

80  Pol.  Cont  544;    Clark,  Cont.  352. 

81  White  V.  Garden,  10  C.  B.  919,  20  Law  J.  C.  P.  167;  Stevenson  v.  Newn- 
ham,  13  C.  B.  285,  22  Law  J.  C.  P.  110;  Pease  v.  Gloahec,  L.  R.  1  P.  C. 
220,  3  Moore,  P.  C.  (N.  S.)  556;  Rowley  v.  Bigelow,  12  Pick.  307;  Hoffman  v. 
Noble,  6  Mete.  (Mass.)  68;  Easter  v.  Allen,  8  Allen,  7;  Kingsbury  v.  Smith, 
13  N.  H.  109;  Titcomb  v.  Wood,  38  Me.  561;  Williamson  v.  RusseU,  39 
Conn-  406;    Paddon  v.  Taylor,  44  N.  Y,  371;    Stevens  v.  Brennan,  79  N.  Y. 


Ch.  5]  FRAUD.  123 

tection  does  not  extend  to  attaching  creditors,"  to  an  assignee  in 
bankruptcy,"  or  to  a  person  taking  the  goods  in  payment  of  an  ex- 
isting indebtedness.®* 
Same — Fraudulent  Impersonation. 

A  sale,  however,  is  to  be  distinguished  from  a  mere  delivery 
of  possession  induced  by  fraud;  for  in  the  latter  case  the  person 
obtaining  possession  acquires  no  property  in  the  goods,  and  can 
pass  none  to  a  third  person,  however  innocent.  Thus  where  a  per- 
son obtains  goods  by  fraudulently  impersonating  a  third  person, ^^ 
or  by  pretending  to  be  the  agent  of  a  third  person, ^^  to  whom  the 
owner  supposes  he  is  selling  the  goods,  the  person  thus  obtaining 
the  goods  acquires  no  title,  and  a  bona  fide  purchaser  from  him 
stands  in  no  better  position.  In  such  a  case  there  is  no  contract 
at  all,  as  the  seller  never  consented  to  sell  to  the  person  to  whom  he 
delivered  the  goods. 

254;  Sinclair  v.  Healy,  40  Pa.  St  417;  Hall  v.  Hinlss,  21  Md.  406;  Williams 
V.  Given,  6  Grat.  268;  Kern  v.  Thurber,  57  Ga.  172;  Wood  v.  Yeatman,  15 
B.  Mon.  270;  Hawkins  v.  Davis,  8  Baxt.  506;  Chicago  Dock  Co.  v.  Foster. 
48  111.  507;  Holland  v.  Swain,  94  111.  154;  Bell  v.  CafCerty,  21  Ind.  411; 
Singer  Manuf'g  Co.  v.  Sammons,  49  Wis.  316,  5  N.  W.  788;  Wineland  v. 
Coonce,  5  Mo.  296;  Cochran  v.  Stewart,  21  Minn.  435;  Sargent  v.  Sturm, 
23  Cal.  259;   Clark,  Cont.  352. 

82  Buffington  v.  Gerrish,  15  Mass.  158;  Goodwin  v.  Massachusetts  Loan 
&  Trust  Co.,  152  Mass.  189,  199,  25  N.  E.  100;  Thompson  v.  Rose,  16  Conn. 
71;  Jordan  v.  Parker,  56  Me.  557;  Oswego  Starch  Fact.  v.  Lendrum,  57  Iowa, 
573,  10  N.  W.  900;   Henderson  v.  Gibbs,  39  Kan.  679,  684,  18  Pac.  926. 

83  Donaldson  v.  Farwell,  93  U.  S.  631;  Bussing  v.  Rice,  2  Gush.  48;  Singer 
V.  Schilling,  74  Wis.  369,  43  N.  W.  101. 

84  Barnard  v.  Campbell,  58  N,  Y.  73;  Stevens  v.  Brennan,  79  N.  Y,  258; 
Sleeper  v.  Davis,  64  N.  H.  59,  6  Atl.  201;  Poor  v.  Woodman,  25  Vt.  235; 
McGraw  v.  Solomon,  83  Mich.  442,  47  N.  W.  345.  Contra,  Shufeldt  v.  Pease, 
16  Wis.  659;    Butters  v.  Haugwout,  42  111.  18.    And  see  Clark,  Cont.  355. 

«B  Cnndy  v.  Lindsay,  3  App.  Cas.  459;  Edmunds  v.  Merchants'  Despatch 
Transp.  Co.,  135  Mass.  283;   LoeEfel  v.  Pohlman,  47  Mo.  App.  574. 

88  Higgons  V.  Burton,  26  Law  J.  Exch.  342;  Hardman  v.  Booth,  1  Hurl.  & 
O.  803.  32  Law  J.  Exch.  105;  Moody  v.  Blake,  117  Mass.  23;  Rodliff  v. 
Dallinger,  141  Mass.  1,  4  N.  E.  805;  Barker  v.  Dinsmore,  72  Pa.  St  427; 
Hamet  v.  Letcher,  37  Ohio  St  356;  McCrillis  v.  Allen,  57  Vt.  505;  Peters 
Box  &  Lumber  Co.  v.  Lesh,  119  Ind.  98,  20  N.  E.  291.  See,  also,  Kinsey  v. 
Leggett  71  N.  Y.  387. 


124  MISTAKE,   FAILURE    OF    CONSIDERATION,  AND    FRAUD.  [Cli.   5 

Rescission  mv^t  he  Within  a  Reasonable  THme, 

What  is  a  reasonable  time  after  the  discovery  of  the  fraud  de- 
pends on  the  circumstances  of  the  case.  Mere  lapse  of  time  will 
furnish  evidence,  and,  when  the  lapse  of  time  is  great,  probably 
conclusive  evidence,  of  affiimauce.  If  in  the  meantime  the  su- 
perior rights  of  third  persons  have  intervened,  or  the  position  of  the 
Dtlicr  party  has  altered  to  his  disadvantage,  the  buyer  would  be  de- 
prived of  his  right  to  rescind.^^ 


FRAUD  ON  CREDITORS. 

67.  Sales  made  -with  the  intent  on  the  part  of  seller  and 
buyer  to  delay,  hinder,  or  defraud  creditors  of  the  seller 
are  fraudulent,  and  may  be  avoided  by  such  creditors, 
unless  a  third  person  has  in  good  faith  and  for  value 
acquired  an  interest  in  the  thing  sold. 

68.  Sales  fraudulent  as  to  creditors  are  valid  as  bet-ween 
the  parties. 

69.  A  bona  fide  purchaser  for  value  from  the  fraudulent 
buyer  acquires  an  indefeasible  title. 

The  foundation  of  the  law  on  this  subject  is  usually  considered 
to  be  the  statute  of  13  Eliz.  c  5,^*  made  perpetual  by  the  statute 

8T  Clough  V.  London  &  N.  W.  Ry.  Co.,  L.  R.  7  Exch.  26,  35;  Pence  v.  Lang- 
don,  99  U.  S.  578;  Grymes  v.  Sanders,  93  U.  S.  55,  62;  Williamson  v.  New 
Jersey  S.  R.  Co.,  28  N.  J.  Eq.  277,  293,  29  N.  J.  Eq.  311,  319;  Willoughby 
V.  Moulton,  47  N.  H.  205;  Burton  v.  Stewart,  3  Wend.  2:!0;  Herrin  v.  Lib- 
bey,  36  Me.  357;  Chamberlin  v.  Fuller,  59  Vt.  247,  9  Atl.  832;  Wilson  v. 
Fisher,  5  Houst.  395;  Bassett  v.  Brown,  105  Mass.  551,  557;  Evans  v. 
Montgomery,  50  Iowa,  325;  Hall  v.  Fullerton,  69  111.  448;  Parmlee  v.  Adolph, 
28  Ohio  St  10;   Collins  v.  Townsend,  58  Cal.  608;   Clark,  Cont.  348. 

88  "For  the  avoiding  and  abolishing  of  feigned,  covinous,  and  fraudulent 
feafCments,  gifts,  grants,  aleinations,  conveyances,  bonds,  suits,  judgments, 
and  executions,  as  well  of  lands  and  tenements  as  of  goods  and  chattels, 
•  •  *  devised  and  contrived  of  malice,  fraud,  covin,  collusion,  or  guile, 
to  the  end,  purpose,  and  intent  to  delay,  hinder,  or  defraud  creditors  and 
others  of  their  just  and  lawful  actions,  suits,  debts:  •  •  *  be  it  therefore 
declared,  ordained  and  enacted  that  all  and  every  feoffment,  gift,  grant, 
aleination,   bargain,   and   conveyance    of    land,    tenements,    hereditaments, 


Ch.   5]  FRAUD    ON    CREDITORS.  125 

of  29  Eliz.  c.  5,  although  earlier  statutes  had  been  previously  passed, 
and  it  has  been  said  upon  high  authority  that  the  principles  of  the 
common  law  are  so  strong  against  fraud  that  without  these  statutes 
every  end  proposed  by  them  would  have  been  obtained."  The 
statute  of  13  Eliz.  c.  5,  provides  in  substance  that  all  conveyances  and 
sales  of  land  or  chattels  made  with  intent  to  delay,  hinder,  or  de- 
fraud creditors  shall  be  utterly  void  and  of  no  effect  against  them, 
with  a  proviso  that  the  act  shall  not  extend  to  defeat  any  estate 
or  interest  conveyed  upon  good  consideration  and  bona  fide  to  any 
person  not  having  at  the  time  of  such  conveyance  notice  of  the 
fraud.  The  statute  has  been  substantially  re-enacted  in  many  of 
the  states  of  the  Union,  but  its  principles  have  been  adopted  even 
in  states  where  no  such  statute  has  been  passed.*" 
Mutual  Intent  to  Defraud. 

A  sale  is  not  fraudulent  against  creditors  unless  the  intent  to 
delay,  hinder,  or  defraud  them  is  shared  by  the  grantee  as  well  as 
by  the  debto^r.  Therefore  the  mere  intent  on  the  par-t  of  the  debtor 
to  defeat  a  creditor  will  not  avoid  a  sale  as  fraudulent,  if  it  be 
made  bona  fide  and  for  a  valuable  consideration.^^  It  is  sufficient 
if  the  consideration  be  a  past  indebtedness.  For  it  is  not  fraud- 
ulent at  common  law  to  prefer  one  creditor  to  another.  If  the 
debtor  is  unable  to  pay  all  his  debts,  he  commits  no  fraud  (in  the 
absence  of  statutory  provisions  regulating  the  distribution  of  in- 

goods,  and  chattels,  •  *  •  and  also  every  bond,  suit,  judgment,  and  exe- 
cution *  *  *  had  or  made  to  or  for  any  Intent  or  purpose  before  declared 
and  expressed  shall  be  from  henceforth  deemed  and  taken  (only  against 
that  person  or  persons.  ♦  *  *  whose  actions,  suits,  debts,  *  •  ♦  by 
such  guileful,  covinous,  or  fraudulent  devices  and  practices,  »  •  *  are 
*  *  *  in  any  ways  disturbed,  hindered,  delayed,  or  defrauded)  to  be 
clearly  and  utterly  void.    ♦    *    *"    13  Eliz.  c.  5. 

8  8  Cadogan  v.  Keunett,  1  Cowp.  432,  per  Lord  Mansiield;  Hamilton  v. 
Russell,  1  Cranch,  309,  31G,  per  Marshall,  C.  J.;  Sturtevant  v.  Ballard,  9 
Johns.  337,  338,  per  Kent,  C.  J. 

8  0  Dyer  v.  Homer,  22  Pick.  258;  Butler  v.  Moore,  73  Me.  151.  By  force  of 
the  common  law,  transfers  of  goods  and  chattels  with  Intent  to  defraud 
creditors  are  voidable,  though  "goods  and  chattels"  are  not  named  In  the 
Minnesota  statute.    Byrnes  v.  Volz,  53  Minn.  110,  54  N.  W.  942. 

81  Wood  V.  Dixie,  7  Q.  B.  892;  Darvill  v.  Terry,  6  HurL  &  N.  807,  30  Law 
J.  Excli.  355;   Beurmann  v.  Van  Bui'en,  44  Mich.  496. 


126  MISTAKE,  FAILURE    OF    CONSIDERATION,   AND    FRAUD.  [Ch.   5 

solvent  estates)  by  appropriating  his  property  to  tlie  satisfaction 
of  one  or  more  of  his  creditors  to  the  exclusion  of  all  others." 
Nor  does  it  make  any  difference  that  both  debtor  and  creditor 
know  that  the  effect  of  such  appropriation  will  be  to  deprive  other 
creditors  of  the  power  of  reaching  the  debtor's  property  by  legal 
process  in  satisfaction  of  their  claims,  or  that  such  is  actually  the 
intention  of  the  debtor;  provided  there  is  no  secret  trust  agreed 
upon  or  understood  between  the  debtor  and  creditor  in  favor  of 
the  former,  and  that  the  sole  object  of  the  latter  is  to  obtain  pay- 
ment or  security  for  his  debt"^  But  if  the  purpose  of  the  debtor 
is  to  defraud  his  creditors,  and  that  purpose  is  participated  in  by 
the  preferred  creditors,  although  the  principal  purpose  of  the  con- 
veyance is  to  secure  a  bona  fide  debt  of  the  latter,  the  conveyance 
is  wholly  void  as  to  the  creditors  intended  to  be  defrauded,"* 

In  respect  to  the  necessity  of  mutual  fraudulent  intent,  convey- 
ances for  a  valuable  consideration  differ  from  voluntary  convey- 
ances. The  latter  may  be  avoided  where  a  fraudulent  intent  on 
the  part  of  the  debtor  exists,  although  the  grantee  did  not  share 
it.""^ 

Fraud  a  Question  of  Fact — Retention  of  Possession. 

Whether  a  transfer  of  goods  is  bona  fide  or  fraudulent  is  now 
generally  held  to  be  a  question  of  fact  for  the  jury.  Few  ques- 
tions in  the  law,  however,  have  given  rise  to  greater  conflict  of 
authority  than  that  of  the  effect  of  retention  of  possession  by  the 
griintor  upon  the  bona  fides  of  the  transaction.     Retention  of  pos- 

»2  Holbird  v.  Anderson,  5  Term  R.  235;  Marbury  v.  Brooks,  7  Wheat. 
556,  11  Wheat.  78;  Smith  v.  Skoary,  47  Conn.  47;  Ferguson  v.  Spear,  65 
Me.  277;  York  Co.  Bank  v.  Carter,  38  Pa.  St.  446;  Gage  v.  Chesebro,  49 
Wis.  486,  5  N.  W.  881;    Butler  v.  White,  25  Minn.  432. 

93  Banfleld  v.  Whipple,  14  Allen,  13,  15;  Carr  v.  Briggs,  158  Mass.  78,  81, 
30  N.  E.  470;  Dudley  v.  Danforth,  61  N.  Y.  626;  Hessing  v.  McCloskey,  37 
111.  341;  Sexton  v.  Anderson,  95  Mo.  373,  8  S.  W.  564;  Hirsch  v.  Richard- 
son, G5  Miss.  227;   Jewell  v.  Knight,  123  U.  S.  426,  434,  8  Sup.  Ct.  193. 

»*  Harris  v.  Sumner,  2  Pick.  137;  Crowninshield  v.  Kittridge,  7  Meta 
(Mass.)  .520;   Bean  v.  Smith,  2  Mason,  252.  Fed.  Cas.  No.  1,174. 

9B  Blake  v.  Sawln,  10  Allen,  340;  Young  v.  Heermans,  66  N.  Y.  374; 
Laughton  v.  Harden,  68  Me.  208. 


Ch.   5]  FRAUD    ON    CREDITORS.  127 

session  and  use  by  the  grantor  was  resolved  in  Twyne's  Case," 
the  leading  case  upon  the  subject  of  fraudulent  conveyances,  to  be 
a  sign  of  fraud.  In  Edwards  v.  Harben,"  it  was  held  that  if  there 
be  nothing  but  the  absolute  conveyance  without  transfer  of  pos- 
session, the  transaction  is  in  point  of  law  fraudulent;  but  later 
decisions  in  England  establish  the  proposition  that  continued  pos- 
session is  a  fact  to  be  considered  by  the  jury  as  evidence  of  fraud, 
but  it  is  not  fraud  per  se.*^  This  view  is  perhaps  the  prevailing 
one  in  the  United  States,  where  the  question  is  unaffected  by  stat- 
ute," but  statutes  have  been  passed  in  many  states,  some  declaring 
sales  without  transfer  of  possession  fraudulent,  and  others  declar- 
ing them  merely  prima  facie  fraudulent.  A  consideration  of  the 
conflicting  decisions  on  this  point  and  of  the  various  statutory 
provisions  cannot  be  attempted  in  an  elementary  book.^°° 

In  some  jurisdictions  the  rule  prevails  that  delivery,  actual  or 
constructive,  is  necessary  to  perfect  the  title  of  the  buyer  as  against 
bona  fide  subsequent  purchasers  and  attaching  creditors,^"^  and 
the  question  how  far  delivery  is  essential  to  transfer  title  is  to  be 
distinguished  from  the  question  how  far  retention  of  possession  by 
the  seller  is  fraudulent. 
Who  are  Creditors. 

A  sale  may  be  fraudulent  as  to  subsequent  as  well  as  existing 
creditors;   and,  if  it  is  fraudulent  as  to  existing  creditors,  it  may 

86  3  Coke,  80;  1  Smith,  Lead.  Cas,  1. 

»T  2  Term.  R.  587. 

»8  Martindale  v.  Booth,  3  Barn.  &  Add.  498;  Cookson  v.  Swrie,  9  App. 
Cas.  653,  664,  per  Lord  Blackburn,  who  points  out  that  it  was  to  put  a  stop 
to  the  evils  growing  out  of  this  rule  that  the  bills  of  sales  acts  were  passed, 
—acts  of  similar  character  to  the  chattel-mortgage  acts  in  this  country. 

8  9  Warner  v.  Norton,  20  How.  448,  460. 

100  A  full  collection  of  the  cases  has  been  made  by  Judge  Bennett,  who 
says  that  three  views  seem  to  prevail  in  the  United  States  as  to  the  effect 
of  continued  possession:  (1)  That  such  possession,  use,  and  apparent  own- 
ership is  a  conclusive  badge  of  fraud,  as  a  rule  of  law.  (2)  That  such  pos- 
session is  prima  facie  a  fraud  In  law,  and,  If  unexplained,  becomes  con- 
clusive as  a  rule  of  law.  (3)  That  such  possession  is  prima  facie  evidence 
of  fraud  for  the  jury,  sufficient  to  warrant,  but  not  to  require,  them  to  find 
the  sale  fraudulent.    Benj.  Sales  (6th  Ed.)  p.  458. 

101  Post,  p.  128. 


128  MISTAKE,  FAILURE    OF    CONSIDERATION,   AND    FRAUD.  [Ch.   5 

be  avoided  by  subsequent  creditors.^"*     The  term  "creditors"  in- 
cludes persons  having  claims  sounding  in  tort^*** 
Effect  of  Fraud. 

iSales  which  are  fraudulent  as  to  creditors  are  nevertheless  valid 
between  the  pai'ties,  who  are  not  allowed  to  defeat  them  by  alleg- 
ing their  own  fraud.^°*  And,  although  the  statute  declares  that 
such  sales  shall  be  void,  they  are  in  fact  merely  voidable,  at  the 
option  of  the  defrauded  creditors.  And,  therefore,  as  in  the  case 
of  sales  voidable  by  one  of  the  parties  for  the  fraud  of  the  other,, 
bona  fide  purchasers  for  value  from  the  fraudulent  buyer  before- 
avoidance  acquire  an  indefeasible  title.^°^  A  further  illustration 
of  the  voidable  character  of  the  transaction  is  the  right  which 
the  buyer  has  to  purge  it  of  the  fraud  by  the  payment,  before 
avoidance,  of  an  adequate  consideration.^"' 

HOW  FAR  DELIVERY  IS  ESSENTIAL  TO  THE  TRANSFER  OF 

THE  PROPERTY  AGAINST  CREDITORS  AND 

PURCHASERS. 

70.  In  some  states,  in  exception  to  the  general  princi- 
ple that  delivery  is   not  essential   to  the   transfer   of  the 

10  2  Day  V.  Cooley,  118  Mass.  524;  McLane  v.  Johnson,  43  Vt.  48;  Hook 
V.  Monie,  17  Iowa,  195;  Jones  v.  King,  86  IlL  225;  Plunkett  v.  Plunkett, 
114  Ind.  484,  16  N.  E.  612,  and  17  N.  E.  562;  Byrnes  v.  Volz,  53  Minn.  110,. 
54  N.  W.  942. 

108  Da;mon  v.  Bryant,  2  Pick.  411;  Jackson  v.  Myers,  18  Johns.  425.  A 
wife  suing  for  a  divorce  and  alimony  is  a  "creditor."  Byrnes  v.  Volz,  53- 
Minn.  110,  54  N.  W.  942.    See,  also,  Liverraore  v.  Boutelle,  11  Gray,  217. 

104  Dyer  v.  Homer,  22  Pick.  253;  Harvey  v.  Varney,  98  Mass.  118;  Os- 
borne V.  Moss,  7  Johns.  161;  Telford  v.  Adams,  6  Watts,  429;  Carpenter  v. 
McClure,  39  Vt.  9;  Springer  v.  Drosch,  32  Ind.  4S():  Clemens  v.  Clemens,. 
28  Wis.  637;  Butler  v.  Moore,  73  Me.  151;  Gary  v.  Jacobson,  55  Miss.  204. 
Contra,  Nellis  v.  Clark,  20  Wend.  24,  4  Hill,  424;  Church  v.  Muir,  33  N.  J. 
Law,  318. 

108  Bean  v.  Smith,  2  Mason,  252,  Fed.  Cas.  No.  1,174;  Green  v.  Tanner,. 
8  Mete.  (Mass.)  411;  Anderson  v.  Roberts,  18  Johns.  515;  Noal  v.  Williams, 
18  Me.  391;  Comey  v.  Pickering,  63  N.  H.  120;  Gordon  v.  Ritenour,  87  Mo.  54. 

106  Oriental  Bank  v.  Haskins,  3  Mete.  (Mass.)  332;  Hutchins  v.  Sprague, 
4  N.  H.  469;  Bean  v.  Smith,  2  Mason,  2.">2,  278,  Fed.  Cas.  No.  1,174.  Contra^ 
Merrill  v.  Meachum.  5  Day,  341;  Preston  v.  Crofut,  1  Conn.  527,  note;  Rob- 
erts V.  Anderson,  3  Johns.  Ch.  371. 


Ch.   5]  DELIVERY    AS    TO    CREDITORS    AND    PURCHASERS.  129 

property,  a  rule  prevails  that  delivery  is  essential  to  such 
transfer  as  against  bona  fl.de  purchasers  and  attaching 
creditors  -without  notice. 

While  it  is  universally  held  that  delivery  Is  not  necessary  to 
transfer  the  property  in  the  goods  sold  as  between  seller  and 
buyer/**^  a  rule  prevails  in  some  states,  as  has  already  been  pointed 
out,  that  delivery  is  necessary  to  transfer  the  property  as  against 
subsequent  purchasers  and  attaching  creditors  without  notice  of 
the  prior  sale.  A  discussion  of  this  rule,  though  logically  falling 
under  the  head  of  the  transfer  of  the  property,  can  more  conven- 
iently be  made  here. 

The  question  how  far  delivery  is  essential  to  a  transfer  of  the 
property  against  purchasers  and  attaching  creditors  is  to  be  dis- 
tinguished from  the  question  how  far  retention  of  possession  is 
fraudulent  Even  in  jurisdictions  which  agree  upon  the  rule  that 
delivery  is  necessary  for  a  transfer  of  the  property  against  pur- 
chasers and  attaching  creditors,  varying  rules  prevail  as  to  the 
effect  of  retention  of  possession  as  evidence  of  fraud.^°*     The  lead- 

107  Ante,  p.  82  et  seq. 

108  For  example,  in  Massachusetts,  tbe  continuance  of  the  seller  In  pos- 
session is  not  of  Itself  enough  to  render  the  sale  void  as  fraudulent,  but 
is  a  fact  to  be  considered  as  evidence  of  fraud,  which  may  be  rebutted  by 
proof  that  it  was  a  sale  for  value  and  in  good  faith,  and  that  possession 
was  retained  under  an  agreement  not  inconsistent  with  honesty  in  the 
transaction.  Brooks  v.  Powers,  15  Mass.  247;  Shurtleff  v.  Willard,  19  Pick. 
202,  211;  Green  v.  Rowland,  16  Gray,  58;  Usher,  Sales,  §  292;  and  of.  Id. 
§  140  et  seq.  The  rule  in  Maine  is  the  same.  Reed  v.  Jewett,  5  GreenL 
(Me.)  96.  In  New  Hampshire,  if  the  seller  fails  to  explain  the  want  of 
change,  It  is  conclusive  evidence  of  fraud.  Ooburn  v.  Pickering,  3  N.  H. 
428;  Coolidge  v.  Melvin,  42  N.  H.  516.  In  Pennsylvania,  retention  of  pos- 
session, where  the  goods  are  capable  of  delivery,  is  fraud  in  law,  and  a 
technical  delivery,  such  as  consent  by  the  seller  to  hold  as  bailee,  is  not 
enough;  the  cases  insisting  on  visible,  rather  than  legal,  change  of  pos- 
session. In  other  words,  these  cases  turn  upon  fraud,  and  do  not  involve 
the  question  whether  delivery  is  essential  to  transfer  the  property.  Clow 
v.  Woods,  5  Serg.  &  R.  275;  McKibbin  v.  Martin,  64  Pa.  St.  352;  Stephens 
V.  Gifford,  137  Pa.  St.  219,  20  Atl.  542.  As  has  been  already  said,  the  sub- 
ject of  the  effect  of  continued  possession  as  evidence  of  fraud  is  too  ex- 
tensive for  consideration  in  this  book.  See  Benj.  Sales  (6th  Am.  Ed.,  Ben- 
nett's note)  p.  458. 

SALES — 9 


130  MISTAKE,  FAILURE    OF   CONSIDERATION,   AND    FRAUD.  [Ch.  5 

ing  case  in  support  of  the  rule  that  delivery  is  necessary  to  trans- 
fer the  property  as  against  subsequent  purchasers  and  attaching 
creditors  is  Lanfear  v.  Sumner/"®  in  which  an  assignment  of  tea 
then  on  a  ship  at  sea  was  made  to  a  bona  fide  creditor,  and  upon 
its  arrivaJ,  and  before  the  assignee  could  take  possession,  the  tea 
was  attached  b}'  a  second  creditor  without  notice  of  the  pi-ior 
assignment.  In  an  action  of  trover  by  the  assignee  against  the 
sheriff,  who  levied  the  attachment,  it  was  held  that  the  want  of 
delivery  was  fatal  to  the  plaintiff's  title.  The  court  said:  "Deliv- 
ery of  possession  is  necessaiy  in  a  conveyance  of  personal  chattels 
as  against  every  one  but  the  vendor.  When  the  same  goods  are 
sold  to  two  diJTerent  persons,  by  conveyances  equally  valid,  he  who 
lirst  lawfully  acquires  the  possession  will  hold  against  the  other." 
This  case  has  been  followed  in  Massachusetts^^"  and  some  other 
states,^ ^^  though  the  rule  is  opposed  to  the  general  principle,  else- 
where recognized,  that  delivery  is  not  essertial  to  a  transfer  of 
the  property.^'''  A  leading  case  against  this  rule  is  Meade  v. 
Smith,^^^  in  which  the  seller  gave  a  bill  of  sale  to  the  buyer,  both 
parties  being  in  New  York,  and  the  buyer  went  at  once  to  Con- 
necticut, where  the  goods  were,  to  take  possession,  but  in  the  mean- 
time they  had  been  attached  by  a  creditor  of  the  seller  without 
notice  of  the  prior  sale,  and  it  was  held  that  the  sale  was  not  in- 
valid for  lack  of  delivery,  there  being  no  want  of  diligence  on  the 
part  of  the  buyer  in  taking  possession.  "This  claim  proceeds,"  said 
Storrs,  J.,  "on  the  ground,  not  that  the  want  of  a  change  of  pos- 
session furnishes  evidence  of  fraud  in  the  sale,  and  that  but  for 
such  fraud  the  property  would  pass  to  the  vendee,  as  against  such 
purchasers  and  creditors,  but  that,  as  to  them,  there  is  no  transfer 

109 17  Mass.  110. 

110  Dempsey  v.  Gardner,  127  Mass.  381;   Hallgarten  v.  Oldham,  135  Mass.  1. 

111  Fairfield  Bridge  Co.  v.  Nye,  60  Me.  372;  Reed  v.  Reed,  70  Me.  504; 
Crawford  v.  Forristall,  58  N.  H.  114;  Burnell  v.  Robertson,  5  Gilman,  282; 
Huschle  V.  Monis,  131  111.  587,  23  N.  E.  643.  See,  also,  Jewett  v.  Lincoln,  14 
Me.  116;   Winslow  v.  Leonard,  24  Pa.  St  14. 

112  Ante,  p.  83.  See  Meyerstein  v.  Barber,  L.  R.  2  C.  P.  38,  51;  Hall- 
garten V.  Oldham,  135  Mass.  1,  per  Holmes.  J. 

113  16  Conn.  346.  This  case  seems  not  inconsistent  with  the  rule  prevailing 
In  Connecticut  that  retention  of  possession  is  usually  conclusive  evidence  of 
fraud.    See  Hatstat  v.  Blalieslee,  41  Conn.  SOL 


Ch.   5]  DELIVERY    A3    TO    CREDITORS    AND    PURCHASERS.  131 

of  the  property  notwithstanding  there  be  no  fraud  by  reason  of 
Buch  want  of  possession;  in  other  words,  that  as  to  them,  before 
such  change  of  possession,  the  title  of  the  vendee  is  merely  inchoate 
and  incomplete."  And  the  decision  rests  upon  the  ground  that 
"want  of  delivery  to,  or  of  the  continuance  of  possession  by,  the 
vendee,  is  in  no  case  considered  in  any  other  light  than  as  furnish- 
ing evidence  of  fraud  in  the  sale;  and  where,  for  want  of  such  de- 
livery or  continuance  of  possession,  the  sale  has  been  pronounced 
void,  it  was  only  on  the  ground  of  such  fraud." 

The  rule  requiring  delivery,  unlike  that  which  makes  retention 
of  possession  evidence  of  fraud,  does  not  operate  in  favor  of  pur- 
chasers or  creditors  who  have  notice  of  the  sale.^** 
What  Constitutes  Delivery. 

Where  the  rule  of  Lanfear  v.  Sumner  prevails,  very  slight  evi- 
dence is  necessary  to  give  a  preference  to  a  bona  fide  buyer  as 
against  an  attaching  creditor  of  the  seller.^^"  If  the  buyer  obtains 
possession  before  any  attachment  or  second  sale,  the  transfer  is 
complete  without  formal  delivery.^ ^^  A  delivery  of  a  part  in  token 
of  the  whole  is  a  sufficient  constructive  delivery,  although  the 
goods  are  in  the  possession  of  various  persons.  ^^''  And  where 
there  can  be  no  manual  delivery,  as  in  the  case  of  goods  at  sea,  a 
symbolical  delivery,  as  of  a  bill  of  sale  or  an  invoice,  is  a  good 
delivery.^^*  So  the  delivery  of  a  bill  of  sale  of  a  ship  at  sea  is 
valid,  provided  the  buyer  takes  actual  possession  as  soon  as  he 
reasonably  can.^^"  The  delivery  of  the  key  of  a  warehouse  where 
the  goods  are  stored  is  a  good  delivery.^  ^*'  If  the  goods  are  in  the 
possession  of  the  seller,  it  is  enough  if  he  agrees  to  hold  as  bailee 

114  Ludwig  v.  Fuller,  17  Me.  162;  Haskell  v.  Greely,  3  Greenl.  (Me.)  425. 
But  notice  to  the  officer  holding  the  writ  before  service,  but  uncommuni- 
cated  to  the  attaching  creditor,  is  not  notice  to  such  creditor.  McKee  v. 
Garcelon,  60  Me.  165. 

iisShumway  v.  Rutter,  8  Pick.  443;  Hardy  v.  Potter,  10  Gray,  89;  Stln- 
son  V.  Clark,  6  Allen,  340;   Ingalls  v.  Herrick,  108  Mass.  35L 

lie  Shumway  v.  Rutter,  8  Pick.  443. 

iiT  Legg  V.  Willard,  17  Pick.  140;    Hobbs  v.  Carr,  127  Mass.  632. 

118  Pratt  V.  Parkman,  24  Pick.  42. 

118  Carter  v.  Willard,  19  Pick.  1,  9,  11;  Conard  v.  Atlantic  Ins.  Co.,  1  Pet 
886,  389;  Wheeler  v.  Sumner,  4  Mason,  183,  Fed.  Cas.  No.  17,501. 

120  Packard  v.  Dunsmore,  11  Cush.  282;   Vining  y.  Gilbreth,  39  Me.  496. 


132  MISTAKK,  FAILURE    OF    CONSIDERATION,  AND    FRAUD.  [Ch.   5 

for  the  buyer. "^  If  they  are  in  the  possession  of  a  third  person, 
it  is  enough  if  notice  of  the  sale  is  given  to  him.^^'  But  the  mere 
delivery  of  a  bill  of  sale  without  delivery,  actual  or  constructive, 
is  not  enough.'^'  Some  of  these  cases  are  hard  to  reconcile  with 
the  statement  of  Holmes,  J.,  in  a  recent  case,^**  that  the  delivery 
required  by  the  rule  in  Lanfear  v.  Sumner  is  delivery  In  its  natural 
sense, — that  is,  change  of  possession, — for  it  is  generally  held,  in 
connection  with  other  branches  of  sale,  that  mere  notice  to  a 
bailee  without  his  attornment  does  not  constitute  deliveiy.  In 
the  latter  case  it  was  held  that  the  indorsement  and  delivery  by  the 
bailor  of  a  receipt  for  goods  stored  in  a  private  warehouse,  making 
the  goods  deliverable  to  the  bailor  on  the  payment  of  charges,  but 
not  to  his  order,  did  not  pass  the  title  as  against  a  creditor  attach- 
ing the  goods  before  notice  to  and  attornment  by  the  bailee. 

"1  Ingalls  V,  Herrick,  108  Mass.  351. 

1S2  Carter  v.  Willard,  19  Pick.  1;  Russell  v.  O'Brien,  127  Mass.  349. 
128  Dempsey  v.  Gardner,  127  Mass.  381;  Farrar  v.  Smith,  64  Me.  74. 
la*  Hallgarten  v.  Oldliam,  135  Mass.  L 


Oh.  6]  IM    G£M£RAL.  183 


CHAPTER  VI. 


ILLEGALITY. 

71-72. 

In  General. 

73-75. 

Sales  Prohibited  by  Common  Law. 

76. 

Sales  Prohibited   by  Public   Policy. 

77. 

Sales  Prohibited  by  Statute. 

78-81. 

Effect  of  Illegality. 

82. 

Conflict  of  Laws. 

IN  GENERAL. 

71.  A  contract  of  sale  -which  is  prohibited  by  la"w  is 
voi<?. 

72.  CLASSIFICATION  OF  UNLAWFTJIj  SALES— Un- 
la-wful  sales  may  be  classified  as  sales  prohibited  by: 

(a)  The  common  law. 

(b)  Public  policy. 

(c)  Statute. 

Certain  limitation3  are  imposed  by  law  upon  the  freedom  of  con- 
tract Certain  contracts  of  sale,  either  because  of  the  subject- 
matter  of  the  sale,  or  because  of  the  purpose  for  which  the  sale 
is  entered  into,  or  because  certain  requirements  of  the  law  have 
not  been  complied  with,  or  because  the  contract  is  made  upon 
Sunday,  or  because  of  other  reasons,  are  prohibited.  And  if  for 
any  reason,  a  contract  falls  within  a  prohibited  class,  it  is  void. 

The  modes  in  which  the  law  expresses  its  disapproval  of  certain 
contracts  may  be  roughly  described  as  prohibition  (1)  by  express 
rules  of  the  common  law;  (2)  through  the  interpretation  of  the 
courts  of  the  policy  of  the  law;  and  (3)  by  statute.  The  first  two 
are  not  easy  to  distinguish  because  certain  of  the  rules  which  have 
been  formulated  by  the  courts  on  matters  of  public  policy  have 
become  in  effect  rules  of  the  common  law.* 

AAnsou,  Cont.  163;  Clark,  Cout.  375b 


134  ILLEGALITY.  [Ch.   6 

SALES  PROHIBITED  BY  COMMON  LAW. 

73.  A  contract  of  sale  is  illegal  at  common  la.'w  if  the 
tiling  sold  is  in  itself  contrary  to  good  morals  or  decency. 

74.  Although  the  thing  sold  is  innocent  in  itself,  the 
contract  of  sale  is  illegal — 

(a)  If  it  provides  that  the  thing  is  to  be  applied  to  an 

illegal  purpose. 

(b)  If  the  buyer  intends  to  apply  the  thing  to  an  ille- 

gal purpose,  and  the  seller  does  some  act  in  aid 
of  such  purpose. 

(0)  If  the  buyer  intends  to  apply  the  thing  to  a  pur- 
pose involving  a  heinous  crime,  and  the  seller 
know^s  of  such  intention. 

(d)  In  some  states,  if  the  sale  is  made  by  the  seller 
■with  a  vie'w  to  the  buyer's  illegal  purpose. 

75.  In  most  jurisdictions,  mere  knov^ledge  on  the  seller's 
part  that  the  buyer  intends  to  apply  the  thing  to  an  ille- 
gal purpose  does  not  render  the  sale  illegal. 

Sale  of  Thing  Contrary  to  Good  Morals. 

A  general  rule  of  the  common  law  is  summed  up  in  the  maxim, 
"Ex  turpi  causa  non  oritur  actio."  Therefore  the  sale  of  a  thing 
which  is  in  itself  contrary  to  good  morals  or  public  decency  cannot 
become  the  basis  of  an  action.  Sales  of  an  obscene  book,'  and  of 
indecent  prints  or  pictures,^  have  been  declared  illegal  and  void  at 
common  law,*  although  upon  this  point  there  have  been  few  de- 
cisions. 
Sale  of  Innocent  Thing  for  Unlawful  Purpose. 

Whether  the  sale  of  a  thing  in  itself  an  innocent  and  proper 
article  of  commerce,  when  the  seller  knows  that  it  is  intended  to  be 
used  for  an  immoral  or  illegal  purpose,  is  valid,  is  a  question  on 
which  the  authorities  disagree,  although  the  decisions  in  this  coun- 
try are  fairly  reconcilable. 

a  Poplett  V.  Stockdale,  Ryan  &  M.  337. 

•  Fores  v.  Johiies,  4  Esp.  97. 

*  Benj.  Sales,  §  504. 


Ch.   6]  SALES    PBOHIBITED    BY    COMMON    LAW.  135 

The  earlier  English  cases  held  that  something  more  than  mere 
knowledge  on  the  part  of  the  seller  of  the  illegal  purpose  was  neces- 
sary, and  that  there  must  be  evidence  of  an  intention  on  his  part 
to  aid  in  the  illegal  purpose  or  to  profit  by  the  immoral  act''  Thus, 
where  clothes  were  sold  to  a  prostitute,  with  knowledge  that  they 
were  for  the  purpose  of  enabling  her  to  pursue  her  calling,  it  was 
held  that  this  was  not  enough,  but  that  it  must  appear  that  the 
seller  expected  to  be  paid  out  of  the  profits  of  her  prostitution,  and 
that  he  sold  the  clothes  to  enable  her  to  carry  it  on,  so  that  he 
might  appear  to  have  done  something  in  furtherance  of  it®  And 
so,  in  an  action  for  the  price  of  spirits  sold  with  knowledge  that 
the  defendant  intended  to  use  them  illegally,  it  was  held  that  the 
plaintiff  could  recover,  since  to  deprive  him  of  his  right  to  payment, 
it  was  necessary  that  he  should  be  a  sharer  in  the  illegal  trans- 
action.'' But  the  later  English  cases  overrule  this  distinction,  and 
hold  that  the  sale  is  void  if  both  parties  know  of  the  illegal  pur- 
pose.* Thus,  where  the  plaintiff  supplied  a  brougham  to  a  prosti- 
tute, it  was  held  not  necessary  to  show  that  he  expected  to  be  paid 
from  the  proceeds  of  her  calling;  that  his  knowledge  of  her  calling 
justified  the  jury  in  inferring  knowledge  of  her  purpose;  and  that 
this  knowledge  rendered  the  contract  void.' 

In  the  United  States  the  cases,  on  the  whole,  follow  substantially 
the  earlier  English  doctrine,  and  hold  that  mere  knowledge  of  the 
buyer's  unlawful  purpose  does  not  invalidate  the  sale,^"  though  all 

6  Benj.  Sales,  §  506  et  seq. 

8  Bowry  v.  Bennet,  1  Camp.  348. 

T  Hodgson  V.  Temple,  5  Taunt.  181. 

8  Cannan  v.  Bryce,  3  Barn.  &  Aid.  179;  McKinnell  v.  Robinson,  3  Mees. 
&  W.  435;  Pearce  v.  Brooks,  L.  R.  1  Exch.  213;  Anson,  Cont  192;  Clark, 
Cont.  478. 

8  Pearce  v.  Brooks,  L,  R.  1  Exch.  213. 

10  Tracy  v.  Talmage,  14  N.  Y.  162;  Sortwell  v.  Hughes,  1  Curt.  244,  Fed. 
Cas.  No.  13,177;  Green  v.  Collins,  3  Cliff.  494,  Fed.  Cas.  No.  5,755;  Hill  v. 
Spear,  50  N.  H.  253;  Tuttle  v.  Holland,  43  Vt  542;  Cheney  v.  Duke,  10  Gill 
&  J.  11;  Wallace  v.  Lark,  12  S.  C.  576;  Bickel  v.  Sheets,  24  Ind,  1;  Webber 
V.  Donnelly,  33  Mich.  469;  Michael  v.  Bacon,  49  Mo.  474;  Anheuser-Busch 
Brewing  Ass'n  v.  Mason,  44  Minn.  318,  46  N.  W.  558;  J.  M.  Brunswick  & 
Balke  Co.  v.  Valleau,  50  Iowa,  120;  McKinney  v.  Andrews,  41  Tex.  363. 
Mclutyre  v.  Parks,  3  Mete.  (Mass.)  207,  is  in  line  with  these  decisions.  See, 
also,  Dater  v.  Earl,  3  Gray,  482.    But  there  are  strong  intimations  in  the 


136  ILLEGALITY.  [Ch.   6 

agree  that  the  sale  is  void  if  it  be  a  part  of  the  contract  of  sale  that 
the  goods  are  to  be  used  for  an  illegal  purpose,^ ^  or  if  the  seller 
does  any  act  in  aid  of  the  buyer's  unlawful  intention,  as  when  he 
packs  goods  in  a  manner  convenient  for  smuggling,  or  conceals  the 
form  of  liquor  so  as  to  enable  the  buyer  to  evade  the  law,^'  or 
marks  domestic  sardines  as  French  to  assist  the  buyer  in  selling 
them  as  such,^*  It  is  frequently  said,  however,  that  knowledge 
of  the  buyer's  purpose  to  use  the  goods  in  the  commission  of  a 
crime  which  is  not  merely  malum  prohibitum  or  of  inferior  crimi- 
nality stands  on  a  different  footing.^*  Thus  knowiedge  that  goods 
were  to  be  used  in  aid  of  rebellion  has  been  held  to  avoid  their 
sale.^'  A  few  authorities,  which  are  scarcely  to  be  reconciled  with 
the  weight  of  authority  in  this  country,  hold  that  the  sale  is  void  if 
made  "with  a  view  to"  the  illegal  purpose,  or  with  the  intention 
of  enabling  the  buyer  to  accomplish  it;  ^'  but  if  the  contract  does 

later  Massachusetts  cases  that  the  law  is  the  other  way.  Suit  v.  Woodhall, 
113  Mass.  391,  395;  Finch  v.  Mansfield,  97  Mass.  89,  92;  Graves  v.  Johnson, 
156  Mass.  211,  30  N.  E.  818,  per  Holmes,  J.;   Clark,  Cont.  482. 

11  Tracy  v.  Talmage,  14  N.  Y.  162,  176;  Green  v.  Collins,  3  ClifE.  494,  501, 
Fed.  Cas.  No.  5,755;   Clark,  Cont.  481. 

12  Gay  lord  v.  Soragen,  32  Vt.  110;  Aiken  v.  Blaisdell,  41  Vt.  655;  Skiff 
v.  Johnson,  57  N.  H.  475;  Banchor  v.  Mansel,  47  Me.  58;  Kohn  v.  Melcher, 
43  Fed.  641;  Tracy  v.  Talmage,  14  N.  Y.  162;  Arnot  v.  Pittston  &  E.  Coal 
Co.,  68  N.  Y.  566;    Waymell  v.  Reed.  5  Term  R.  599;    Clark,  Cont.  481. 

13  Materne  v.  Horwitz,  50  N.  Y.  Super.  Ct.  41;   101  N.  Y.  469,  5  N.  B.  331. 
1*  Hanauer  v.  Doane.  12  Wall.  342;  Tracy  v.  Talmage,  14  N.  Y.  162;   How- 
ell V.  Stewart,  54  Mo.  400;   Clark,  Cont  482. 

IB  Hanauer  v.  Doane,  12  Wall.  342;  Tatum  v.  Kelley.  25  Ark.  209.  By 
the  common  law,  sales  to  an  alien  enemy  are  void.  Brandon  v.  Nesbitt,  6 
Term  R.  23;  Potts  v.  Bell,  8  Term  R.  548;  U.  S.  v.  Lapene,  17  Wall.  601; 
Bank  of  New  Orleans  v.  Mathews,  49  N.  Y.  12. 

16  Webster  v.  Munger,  8  Gray,  584;  Graves  v.  Johnson,  156  Mass.  211, 
30  N.  E.  818;  Davis  v.  Bronson,  6  Iowa,  410  "When  a  sale  of  intoxicating 
liquors  in  another  state  has  just  so  much  greater  approximation  to  a  breach 
of  the  Massachusetts  law  as  is  implied  in  the  statement  that  It  is  made  with 
a  view  to  such  a  breach,  it  is  void.  Webster  v.  Munger,  8  Gray,  584;  Orcutt 
▼,  Nelson,  1  Gray,  530,  541;  Hubbell  v.  Flint,  13  Gray,  277,  279;  Adams  v. 
Coulliard,  102  Mass.  167,  172,  173.  *  *  *  If  the  sale  would  not  have  been 
made  but  for  the  seller's  desire  to  induce  an  unlawful  sale  In  Maine,  it 
would  be  an  unlawful  sale.  *  *  *  We  assume  that  the  sale  would  have 
taken  place  whatever  the  buyer  had  been  expected  to  do  with  the  goods. 


Ch.   6]  SALES    PROHIBITED    BY    PUBLIC    POLICY.  137 

not  provide  for  such  purpose,  and  the  seller's  connection  with  the 
transaction  is  confined  to  a  sale  of  the  goods,  it  is  difficult  to  see 
how  any  line  between  mere  knowledge  of  the  purpose  and  conduct 
in  aid  of  it  can  practically  be  drawn. 


SALES  PROHIBITED  BY  PUBLIC  POLICY. 

76.  Sales  prohibited  by  public  policy  include: 

(a)  Sales  of  oflSces. 

(b)  Sales    by    which    the    seller   is    unreasonably 

restrained  in  carrying  on  his  trade. 

(c)  Sales  of  law  suits. 

Modern  decisions,  while  maintaining  the  duty  of  the  courts  to 
consider  public  policy,  have  tended  to  limit  the  sphere  within  which 
the  duty  should  be  exercised.  Certain  contracts,  however,  are 
prohibited  as  against  public  policy,  and  among  them  are  included 
the  contracts  of  sale  which  have  been  enumerated.^ ^ 
Scde  of  Offices. 

Contracts  for  the  sale  of  a  public  office  or  of  the  fees  or  emolu- 
ments of  office  are  held  to  be  subversive  of  public  policy,  as  opposed 
to  the  interests  of  the  people  and  the  proper  administration  of 
government.^®      This  applies  to  the  sale  of  office  by  the  appointing 

•  •  •  The  question  is  whether  the  sale  is  saved  by  the  fact  that  the 
intent  mentioned  was  not  the  controlling  inducement  to  it.  *  *  *  If  the 
sale  is  made  with  the  desire  to  help  him  (the  buyer)  to  his  end,  although 
primarily  made  for  money,  the  seller  cannot  complain  if  the  illegal  conse- 
quence Is  attributed  to  him.  If  the  buyer  knows  that  the  seller  while  aware 
of  his  Intent  is  indifferent  to  It,  or  disapproves  of  it,  it  may  be  doubtful 
whether  the  connection  is  sufficient  It  appears  to  us  not  unreasonable  to 
draw  the  line  as  was  drawn  in  Webster  v.  Hunger,  8  Gray,  584,  and  to  say 
that  when  the  illegal  intent  of  the  buyer  is  not  only  known  to  the  seller, 
but  encouraged  by  the  sale,  as  just  explained,  the  sale  is  void."  Graves  v. 
Johnson,  supra,  per  Holmes,  J.    And  see  Clark.  Cont.  481. 

IT  Benj.  Sales,  §  512  et  seq.;    Anson,  Cont.  175;    Clark,  Cont  414. 

18  Garforth  v.  Fearon,  1  H.  Bl.  328;  Hanington  v.  Du  Chatel,  1  Brown,  C. 
C.  124;  Gray  v.  Hook,  4  N.  Y.  449;  Filson  v.  Himes,  5  Pa.  St  452;  Eddy  v. 
Oapron,  4  R.  I.  394;  Engle  v.  Chipman,  51  Mich.  524,  16  N.  W-  886;  Morse 
V.  Ryan.  26  Wis.  356;   Clark,  Cont  416. 


138  ILLEGALITY.  [Ch.   6 

power,  as  well  as  by  the  incumbent  of  the  office.^*  And  the  rule 
has  been  applied  in  England  to  the  sale  of  a  quasi  public  oflQce, 
as  the  sale  by  the  owners  of  a  ship  of  the  position  of  master.*"  The 
same  rule  governs  the  assignment  of  the  salaiy  of  a  public  ofiQcer,'* 
and  of  a  pension  unless  exclusively  for  past  services." 
Contracts  in  Rcdraint  of  Trade. 

A  contract  of  sale,  by  the  terms  of  which  the  seller  is  restrained 
unreasonably  in  carrying  on  his  trade,  is  against  public  policy,  and 
is  void.-^  Such  contracts  arise  frequently  where  merchants  or 
mechanics  sell  out  their  business,  including  the  good  will,  and  where 
the  buyer  desires  to  guard  against  the  competition  of  the  seller. 
This  subject  relates  only  indirectly  to  the  law  of  sales,  and  a 
consideration  of  it  will  not  here  be  attempted.  The  general  rules 
may  be  briefly  stated  as  follows:  (1)  A  restraint  is  not  unreasonable 
if  it  is  founded  on  a  valuable  consideration,  and  is  reasonably  neces- 
sary to  protect  the  interest  of  the  party  in  whose  favor  it  is  imposed, 
and  does  not  unduly  prejudice  the  interests  of  the  public,  (2)  The 
restraint  may  be  unlimited  as  to  time;  but  it  was  formerly  thought, 
and  is  still  held  in  come  jurisdictions,  that  it  must  not  be  unlim- 
ited as  to  space,  though  modern  decisions  raise  a  doubt  on  this 
question.** 

19  Corporation  of  Liverpool  v.  Wright,  28  Law  J.  Ch.  868,  1  Johns.  Eng. 
Ch.  359;  Town  of  Meredith  v.  Ladd,  2  N.  H.  517;  Alvord  v.  Collin,  20  Picli. 
418,  428;  Groton  v.  Waldoborough,  11  Me.  306;  Town  of  Thetford  v,  Hub- 
bard, 22  Vt.  441,  446;   Hall  v.  Gavit,  18  Ind.  390. 

2  0  Blachford  v.  Preston,  8  Term  K.  89;  Card  v.  Hope,  2  Barn.  &  a  661. 
A  contract  by  which  a  shareholder  in  a  coiijoration,  in  consideration  of  the 
purchase  of  his  stock,  agrees  to  secure  to  the  purchaser  the  office  of  treas- 
urer   is  void  as  against  public  policy.    Guernsey  v.  Cook,  120   Mass.   501. 

21  Wells  V.  Foster,  8  Mees.  &  W.  149;  Flarty  v.  Odium,  3  Term  R.  681; 
Bliss  V.  Lawrence,  58  N.  Y.  442;  Bowery  Nat.  Bank  v.  Wilson,  122  N.  Y. 
478,  25  N.  E.  855;  Schloss  v.  Hewlett,  81  Ala.  266,  1  South.  263;  Field  v. 
Chipley,  79  Ky.  260;  State  v.  Williamson  (Mo.  Sup.)  23  S.  W.  1054;  Bangs 
v.  Dunn,  66  Cal.  72,  4  Pac.  903;  Clark,  Cont  419.  Contra,  State  v.  Hastings, 
15  Wis.  78.    Cf.   Brackett  v.  Blake,  7  Mete.  (Mass.)  335. 

2  2  Wells  V.  P"'oster,  8  Mees.  &  W.  149.  The  assignment  of  pensions  is  de- 
clared void  by  Act  Cong.  Feb.  28,  1883;  Clark,  Cont  419.  See  Loser  t. 
Board,  92  Mich.  633,  52  N.  W.  956. 

2  3  Benj.  Sales,  §  530  et  seq.;   Anson,  Cont.  179;    Clark,  Cont.  446. 

2*  Clark,  Cont.  446,  where  the  law  is  clearly  stated. 


Ch.  6]  SALES    PROHIBITED    BY    STATUTE.  139 

Sales  of  Lawsuits, 

Champertj  is  the  maintenance  of  another  in  a  suit  for  a  sliare 
in  the  proceeds."  Champerty  was  an  offense  at  common  law, 
and  is  generally  so  recognized  to-day  in  this  country,''®  though  in 
many  states  it  is  not  recognized  as  such,^^  or  been  abolished  as  an 
offense  by  statute.^'  Where  champerty  is  an  offense,  it  cannot 
form  the  subject  of  a  contract.^®  The  subject  of  champerty  is 
not  verj^  closely  connected  with  the  law  of  sales,  except  as  in  its 
less  obvious  form  it  affects  the  question  whether  the  sale  of  a  right 
of  action  is  valid.  The  authorities  cannot  all  be  reconciled,  but 
the  distinction  which  runs  through  them  is  in  effect  that  it  is  not 
unlawful  to  purchase  an  interest  in  property,  though  adverse  claims 
exist  which  make  litigation  necessary  for  the  realization  of  the  in- 
terest purchased,  but  that  it  is  unlawful  to  purchase  an  interest 
merely  for  the  purpose  of  litigation;  in  other  words,  that  the  sale 
of  an  interest  to  which  the  right  to  sue  is  incident  is  valid,  but  the 
sale  of  a  mere  right  of  action  is  bad.^° 

SALES  PROHIBITED  BY  STATUTE. 

77.  Among  statutes  prohibiting  sales  the  foUo-wing  are 
the  most  important: 

(a)  Statutes  regulating  the  conduct  of  trades  in  certain 
commodities,  or  requiring  a  license  of  persons 
engaged   in   certain   kinds  of  business,  and,  by 

2B  4  Bl.  Comm.  135. 

2«  Ackert  v.  Barker,  131  Mass.  436;  Martin  v.  Olarke,  8  R.  I.  389;  Thomp- 
son V.  Reynolds,  73  111.  11;  Greenman  v.  Cohee,  61  Ind.  201;  Stearns  v. 
Felker,  28  Wis.  594;   Boardmon  v.  Thompson,  25  Iowa,  487. 

27  Richardson  v.  Rowland,  40  Conn.  565;  Schomp  v.  Schenck,  40  N.  J. 
Law,  195;   Danforth  y.  Streeter,  28  Vt.  490;   Lytle  v.  State,  17  Ark.  663. 

2  8  Fowler  v.  Callan,  102  N,  Y.  395,  7  N.  E.  169;  Wlldey  v.  Crane,  63  Mich. 
720,  30  N.  W.  327;    Clark,  Cont.  433. 

2»  Stanley  v.  Jones,  7  Bing.  369;  cases  cited  In  note  26,  supra. 

30  Prosser  v.  Edmonds,  1  Younge  &  C.  Exch.  499;  Norton  v.  Tuttle,  60 
111.  130;  Illinois  Land  &  Loan  Co.  v.  Speyer,  138  111.  137,  27  N.  E.  931; 
Brush  V.  Sweet,  38  Mich.  574;  Dayton  v.  Fargo,  45  Mich.  153,  7  N.  W.  758; 
Milwaukee  &  St.  P.  R.  Co.  v.  Milwaukee  &  M.  R.  Co.,  20  Wis.  174;  Foy  v. 
Cochran,  88  Ala.  353,  6  South.  685;   Pol.  Cont.  298. 


140  ILLEGALITY.  [Uh.   6 

Implication,  prohibiting  sales  where  the  statu- 
tory provisions  have  not  been  complied  ■with. 

(b)  Statutes    prohibiting    absolutely    or    conditionally 

the  sale  of  intoxicating  liquors. 

(c)  Statutes  prohibiting  sales  on  Sunday. 

(d)  Statutes     prohibiting    wagers.      This    subdivision 

includes  statutes  prohibiting  the  selling  of  goods 
for  future  delivery,  w^here  the  parties  intend, 
not  an  actual  delivery,  but  a  settlement  by  pay- 
ing the  difference  betw^een  the  market  and  the 
contract  price. 

Where  contracts  are  prohibited  by  statute,  the  prohibition  is 
sometimes  express  and  sometimes  implied,  and  in  either  case  the 
contract  cannot  be  enforced.  The  usual  way  by  which  contracts 
are  prohibited  by  implication  is  by  the  imposition  of  a  penalty. 
Some  cases  hold  that,  whenever  a  statute  imposes  a  penalty  for  an 
act  or  omission,  it  impliedly  prohibits  the  same;'^  but,  by  the 
weight  of  authority,  the  imposition  of  a  penalty  is  only  prima  facie 
evidence  of  the  intention  to  prohibit.  The  intention  of  the  legis- 
lature will  always  govern,  and  the  court  will  look  to  the  language 
and  subject-matter  of  the  act  and  to  the  evil  which  it  seeks  to  pre- 
vent.^* A  consideration  which  receives  great  weight  is  whether 
the  object  of  the  penalty  is  protection  to  the  public  as  well  as 
revenue;  for,  if  the  penalty  is  designed  to  further  the  interests  of 
public  policy,  it  amounts  to  a  prohibition;  '*  but,  if  it  is  designed 
solely  for  revenue  purposes,  the  contract  is  not  necessarily  prohibit- 

81  Miller  v.  Post,  1  Allen,  434;  Pray  v.  Burbank,  10  N.  H.  377;  Hallett  v. 
Xovion,  14  Johns.  273;  Durgin  v., Dyer,  68  Me.  143;  Bancroft  v.  Dumas,  21 
Vt  456;   Mitchell  v.  Smith,  1  Bin.  110;   Bacon  v.  Lee,  4  Iowa,  490. 

8  2  Cope  V.  Rowlands,  2  Mees.  &  W.  149;  Miller  v.  Ammon,  145  U.  S.  421, 
426,  12  Sup.  Ct.  884;  Harris  v.  Runnels,  12  How.  79,  84;  Bowditch  v.  New 
England  Ins.  Co.,  141  Mass.  202,  295,  4  N.  E.  798;  Pangborn  v.  Westlake, 
36  Iowa,  54G;   Niemeyer  v.  Wright,  75  Va.  239;   Clark,  Cont.  385. 

83  Cope  V.  Rowlands,  2  Mees.  &  W.  149;  Cundell  v.  Dawson,  4  C.  B.  370; 
Griffith  V.  Wells,  3  Denio,  220;  Seidenbender  v.  Charles,  4  Serg.  &  R.  150; 
Penn  v.  Bornman,  102  IlL  523;  Bisbee  v.  McAllen,  39  Minn.  143,  39  N.  W. 
299;   Clark,  Cont.  388. 


Cb.   6]  SALES    PROHIBITED    BY    STATUTE.  141 

ed.'*  A  second  consideration  is  whether  the  penalty  is  recurrent 
upon  every  breach  of  the  provisions  of  the  statute,  for,  if  it  is  re- 
current, the  inference  is  that  the  penalty  amounts  to  a  prohibition.'* 
Statutes  Regulating  Trade. 

There  are  numerous  statutes  enacted  for  the  purpose  of  protect- 
ing the  public  in  business  dealings,  which  generally  impose  a  pen- 
alty for  noncompliance  with  their  provisions,  and  which  are  con- 
strued as  prohibiting  sales  on  the  part  of  dealers  who  have  failed 
to  comply  with  them.  Among  these  statutes  may  be  mentioned 
statutes  requiring  dealers  to  have  their  weights,  measures,  or  scales 
approved  or  sealed;^®  statutes  requiring  goods  to  be  marked  in  a 
particular  way,^^  or  to  be  inspected,^ ^  or  to  conform  to  a  certain 
weight  or  to  certain  dimensions,'®  or  to  be  ofificially  weighed  or 
measured,*"  or  to  be  sold  by  weight  and  not  by  measure,  or  vice 
versa;  *^  and  statutes  requiring  dealers  to  take  out  a  license.*^ 
The  effect  of  noncompliance  by  the  seller  with  such  statutes  is  to 
preclude  him  from  recovering  the  price. 
Statutes  Regulating  Sale  of  Intoxicating  Liquor. 

Where  a  statute  prohibits  the  sale  of  liquor  absolutely,  a  contract 
of  sale  is,  of  course,  invalid.  But,  whether  absolutely  prohibitory 
or  not,  such  statutes  are  construed  as  intended,  not  merely  for 
revenue,  but  to  diminish  the  evils  of  intemperance.     Therefore, 

«*  Brown  v.  Duncan,  10  Barn.  &  C.  93;  Larned  v.  Andrews,  106  Mass.  435; 
Corning  v.  Abbott,  54  N.  H.  469;  Aiken  v.  Blaisdell,  41  Vt.  655;  Ruckman 
V.  Bergholz,  37  N.  J.  Law,  487;  Raliter  v.  First  Nat.  Bank,  92  Pa.  St.  393; 
Mandlebaum  v.  Gregovich,  17  Nev.  87,  28  Pac.  121. 

85  Ritchie  v.  Smith,  6  C.  B.  4G2;   Benj,  Sales,  §  538. 

«3  Miller  v.  Post,  1  Allen,  434;  Bisbee  v.  McAllen,  39  Minn.  143,  89  N. 
W.  299;  Finch  v.  Barclay,  87  Ga.  393,  13  S.  E.  566.  See,  generally,  as  to 
statutes  regulating  a  trade  or  business,  Clark,  Cont.  390. 

8T  Forster  v.  Taylor,  5  Barn.  «&  Adol.  887;  McConnell  v.  Kitchens,  20  S. 
C.  430. 

38  Baker  v.  Burton,  31  Fed.  401;  Conley  v.  Sims,  71  Ga.  161;  Campbell 
V.  Segars,  81  Ala.  259,  1  South.  714. 

8  8  Law  V.  Hodson,  11  East,  300;   Wheeler  v.  Russell,  17  Mass.  258. 

<o  Pray  v.  Burbank,  10  N.  H.  377;   Libby  v.  Downey,  5  Allen.  299. 

41  Eaton  V.  Keegan,  114  Mass.  433. 

*2  Cope  V.  Rowlands,  2  Mees.  &  W.  149;  Johnson  v.  Hulings,  103  Pa.  St 
498;   Buckley  v.  Humason,  50  Minn.  195,  52  N.  W.  385. 


142  ILLEGALITY.  [Ch.  6 

where  the  statute  simply  imposes  a  penalty  for  selling  without 
license,  the  sale  is  void.*^ 
Statutes  Prohibiting  Sunday  Sales. 

At  common  law,  sales,  like  other  contracts  entered  into  on  Sun- 
day, are  valid.**  In  later  times,  however,  statutes  have  been  passed 
in  England,  and  in  most  of  the  states,  prohibiting  certain  acts  on 
Sunday,  and  whether  sales  are  included  in  the  prohibition  depends 
upon  the  terms  of  the  particular  act.  Where  the  statute  prohibits 
the  making  of  contracts,  sales  are,  of  course,  included.  And  sales 
are  included  where  the  prohibition  is  against  labor,  workj  and 
business,  since  the  making  of  contracts  is  secular  business;*'  but 
they  are  not  included  if  the  prohibition  is  merely  against  labor.*' 
Again,  if  the  prohibition  is  confined  to  labor,  work,  or  business  of 
a  man's  "ordinary  calling,"  a  sale  not  in  the  exercise  of  such  calling 
is  valid.*^  If  the  law  prohibits  exposure  of  merchandise  for  sale, 
the  prohibition  extends  only  to  public  sales.*" 
Same — Ratification  of  Sunday  Sale. 

Whether  a  Sunday  sale  is  capable  of  ratification  is  a  question 
on  which  there  is  much  conflict  of  authority.     A  leading  case  on  the 

*8  Griffith  V.  Wells,  3  Denio,  226;  Aiken  v.  Blalsdell,  41  Vt.  655;  Lewis  v. 
Welch,  14  N.  H.  294;  Cobb  v.  Billings,  23  Me.  470;  Melchoir  v.  McCarty, 
31  Wis.  252;  O'Bryan  v.  Fitzpatrick,  48  Ark.  487,  3  S.  W.  527;  Bach  v. 
Smith,  2  Wash.  T.  145,  3  Pac.  831.    And  see  Clark,  Cont.  302. 

**  Drury  v.  Defontaine,  1  Taunt.  131;  Richardson  v.  Goddard,  23  How. 
29,  42;  Adams  v.  Gay,  19  Vt.  358;  Bloom  v.  Richards,  2  Ohio  St.  387;  Rich- 
mond V.  Moore,  107  111.  429;   Brown  v.  Browning,  15  R.  I.  423,  7  Atl.  403. 

4  5  Pattee  v.  Greely,  13  Mete.  (Mass.)  284;  Northrup  v.  Foot,  14  Wend. 
249;  Towle  v.  Larrabee,  26  Me.  464;  Varaey  v.  French,  19  N.  H.  233;  Nibert 
V.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252;  Troewert  v.  Decker,  51  Wis.  46, 
8  N.  W.  26;  Dm-ant  v.  Rlicner,  26  Minn.  362,  4  N.  W.  610;   Clark,  Cont.  393. 

46  Richmond  v.  Moore,  107  111.  429;  Birks  v.  French,  21  Kan.  238.  Contra, 
Reynolds  v.  Stevenson,  4  Ind.  619. 

4  7  Drury  v.  Defontaine,  1  Taunt.  131;  Bloxsorae  v.  Williams,  3  Barn.  & 
C.  232;  Scarfe  v.  Morgan,  4  Mees.  &  W.  270;  Allen  v.  Gardiner,  7  R.  I.  22; 
Hazard  v.  Day,  14  Allen,  487;  Swann  v.  Swann,  21  Fed.  299;  Amis  v.  Kyle, 
2  Yerg.  31;  Sanders  v.  Johnson,  29  Ga.  526;  Mills  v.  Williams,  16  S.  C. 
593;  Clark,  Cont.  395.  But  see  Fennell  v.  Ridler,  5  Barn.  &  C.  406;  Smith 
V.  Sparrow,  4  Bing.  84. 

4  8  Boynton  v.  Page,  13  Wend.  425;  Batsford  v.  Every,  44  Barb.  618;  Clark, 
Cont  395. 


Ch.   6]  SALES    PROHIBITED    BY    STATUTE.  143 

point  is  Williams  v.  Paul,"  in  which  there  was  a  subsequent  prom- 
ise to  pay  for  the  goods,  on  the  strength  of  which  it  was  held  that 
an  action  could  be  maintained;  but  this  decision  was  questioned 
by  Parke,  B.,"  on  the  ground  that  the  contract  was  incapable  of 
ratification,  and  that  the  property  in  the  goods  having  passed  by 
delivery,  the  promise  to  pay  for  them  was  without  consideration. 
If  it  is  correct  to  say  that  the  property  passes  in  such  case,  this 
criticism  appears  to  be  unanswerable;  but  there  is  some  authority 
to  the  effect  that  the  property  does  not  pass,  and  that,  if  the  goods 
have  not  been  paid  for,  the  seller  can  maintain  replevin  or  trover," 
in  which  case  sufficient  consideration  for  the  new  promise  may  be 
found.  In  this  country  the  cases  are  in  direct  conflict,  some  hold- 
ing that  a  Sunday  contract  can  be  ratified  "  and  others  holding 
that  it  cannot. '*'  So  also  the  cases  are  conflicting  on  the  question 
whether  an  action  can  be  maintained  when  there  is  a  subsequent 
promise  to  pay."**  If  the  sale  is  made  on  Sunday,  but  the  goods 
are  not  delivered  until  a  week  day,  the  buyer  is  liable,  not  on  the 
original  promise,  but  on  an  implied  promise  to  pay  for  the  goods.  ^"^ 
Wagering  Contracts. 

At  common  law,  wagers  that  did  not  violate  any  rule  of  public 
decency  or  morality  or  any  recognized  principle  of  public  policy 
were  not  prohibited,''"  although  in  many  of  the  states  of  the  Union 

*9  6  Bing.  653. 

60  Simpson  v.  Nicholls,  3  Mees.  &  W.  244,  as  corrected  5  Mees.  &  W.  702. 

61  Post,  p.  146. 

62  Adams  v.  Gay,  19  Vt.  360;  Flinn  v.  St.  John,  51  Vt.  334,  345;  Sayles 
V.  Wellman,  10  R.  I.  465;  Banks  v.  Werts,  13  Ind.  203;  Tucker  v.  West,  29 
Ark.  3S6;  Campbell  v.  Young,  9  Bush,  240;  Gwinn  v.  Simes,  61  Mo.  335; 
Smith  V.  Case,  2  Or.  190. 

63  Day  V.  McAllister,  15  Gray,  433;  Tillock  v.  Webb,  56  Me.  100;  Plaisted 
V.  Palmer,  63  Me.  576;  Grant  v.  McGrath,  56  Conn.  333,  15  Atl.  370;  Butler 
V.  Lee,  11  Ala.  885;  Vinz  v.  Beatty,  61  Wis.  645,  21  N.  W.  787;  Clark,  Cont. 
398,  collecting  cases. 

64  Harrison  v.  Colton,  31  Iowa,  16;  Melchoir  v.  McCarty,  31  Wis.  252.  See 
Winchell  v.  Cary,  115  Mass.  560.  Contra,  Boutelle  v.  Melendy,  19  N.  H.  196; 
Kountz  V.  Price,  40  Miss.  341. 

6  5  Bradley  v.  Rea,  14  Allen,  20,  108  Mass.  188;  Foreman  v.  Ahl,  55  Pa. 

St.  325. 

66  Anson,  Cont.  166;   Benj.  Sales,  §  542;   Clark,  Cont.  405. 


144  ILLEGALITY.  [Ch.   G 

wagering  contracts  on  matters  in  which  the  parties  have  no  inter- 
est have  been  held  contrary  to  public  policy  and  unenforceable." 
By  statute  to-day,  in  England,  and  in  most,  if  not  all,  of  the  states, 
contracts  by  way  of  wagering  and  gaming  are  declared  void.  There- 
fore, a  bet  in  the  form  of  a  sale,  as  the  sale  of  a  horse  for  |loO 
if  H.  G.  is  elected  president,  and  for  $500  if  U.  S.  G.  is  elected, 
is  invalid.^* 
Same — Futures. 

The  principal  question  that  arises  in  the  law  of  sales  in  connec- 
tion with  the  subject  of  wagers  is  whether  an  executoi'y  contract 
for  the  sale  of  goods  is  not  a  device  for  gaming.  As  has  been 
stated,"'  a  contract  for  the  sale  of  goods  to  be  delivered  at  a  future 
day  is  valid,  even  though  the  seller  has  not  the  goods  or  any 
means  of  getting  them  except  that  of  buying  them  in  the  market. 
But  such  a  contract  is  valid  only  provided  the  parties  really  intend 
and  agree  that  the  goods  are  to  be  delivered  by  the  seller,  and 
that  the  price  is  to  be  paid  by  the  buyer.  If  under  the  guise  of  such 
a  contract,  the  real  intent  is  merely  to  speculate  in  the  rise  and  fall 
of  prices,  and  the  actual  agreement  is  that  the  goods  are  not  to  be 
delivered,  but  that  one  party  is  to  pay  to  the  other  the  difference 
between  the  contract  price  and  the  market  price  of  the  goods,  at 
the  date  fixed  for  the  performance  of  the  contract,  then  the  whole 
contract  constitutes  nothing  more  than  a  wager,  and  is  null  and 
void.^°  But  the  contract  does  not  become  a  wagering  contract 
simply  because  one  or  both  of  the  parties  intend,  when  the  time  for 

BT  Irwin  T.  Williar,  110  U.  S.  499,  510,  4  Sup.  Ct.  160,  166,  and  cases 
cited;   Clark,  Cont  407,  40S. 

68  Harper  v.  Grain,  36  Ohio  St.  338;    Bates  v.  Clifford.  22  Minn.  52. 

58  Ante,  p.  26. 

eo  Grizewood  v.  Blane,  11  C.  B.  526;  Irwin  v.  Williar,  110  U.  S.  499,  4  Sup. 
Ct  160;  White  v.  Barber,  123  U.  S.  392,  8  Sup.  Ct  221;  Harvey  v.  Merrill, 
150  Mass.  1,  22  N.  E.  49;  Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  403; 
Rumsey  v.  Berry,  65  Me.  570;  Hatch  v.  Douglas,  48  Conn.  116;  Flagg  v.  Gil- 
pin, 17  R.  I.  10,  19  Atl.  lO&l;  Kingsbury  v.  Kirwan,  77  N.  Y.  612;  Brua's 
Appeal,  55  Pa.  St.  294;  Maxton  v.  Gheen,  75  Pa.  St.  166;  Burt  v.  Myer,  71 
Md.  467,  18  Atl.  796;  Lawton  v.  Blitch,  83  Ga.  663,  10  S.  E.  353;  McGrew 
v.  City  Produce  Exchange,  85  Tenn.  572,  4  S.  W.  38;  Kahn  v.  Walton,  46 
Ohio  St  195,  20  N.  E.  203;  Pickering  v.  Cease,  79  111.  328;  Cothran  v.  Ellis, 
125  111.   496,  16  N.   E.  646;    Whitesides  v.  Hunt,  97  Ind.  191;    Gregory   v. 


Ch,  6]  EFFECT   OF    ILLEGALITY.  145 

performance  arrives,  not  to  require  perforiuanco,  but  to  substitute 
a  settlement  by  payment  of  the  difference  between  tlie  contract 
price  and  the  market  price,  so  long  as  it  is  agreed  that  the  con- 
tract shall  be  performed  according  to  its  terms  if  either  party  re- 
quires it."*^  If  either  party  intends  an  actual  sale,  he  may  enforce 
the  contract,  though  the  other  intends  a  wager.** 


EFFECT  OF  ILLEGALITY. 

78.  The  effect  of  the  illegality  is  to  render  the  contract 
of  sale  void,  and  therefore  neither  party  can  maintain  an 
action  to  enforce  an  illegal  contract. 

79.  If  the  contract  has  been  performed  by  both  parties, 
the  court  "will  not  lend  its  aid  to  either  party  to  recover 
what  he  has  paid  or  delivered. 

80  If  money  has  been  paid  or  goods  have  been  deliv- 
ered under  a  contract  of  sale,  the  object  of  which,  though 
illegal,  has  not  been  carried  out,  and  the  contract  is 
unpe2form.ed  by  the  other  party,  the  party  w^ho  has  per- 
formed may  disaffirm  and  recover  the  goods  or  the  money. 

81.  If  the  contract  is  for  the  sale  for  an  entire  price  of 
various  articles,  some  of  which  may  and  others  of  w^hich 
may  not  be  law^fully  sold,  the  w^hole  contract  is  void;  but, 
if  a  separate  price  is  named  for  each  article,  the  contract 
may  be  enforced  so  far  as  it  relates  to  the  articles  law- 
fully sold. 

The  effect  of  illegality  is  generally  to  render  the  contract  void. 
Neither  party  can  maintain  an  action  upon  it, — neither  the  seller 

Wendell,  39  Mich.  337;  Cockrell  v.  Thompson,  85  Mo.  510;  Everingham  v. 
Meighan,  55  Wis.  354,  13  N.  W.  269;  Mohr  v.  Miesen,  47  Minn.  22S,  49  N. 
W.  862;    Toniblin  v.  Gallon,  69  Iowa,  229,  28  N.  W.  573;    Clark,  ConL  410. 

61  Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  49,  per  Field,  J.;  Olark,  Cont.  411. 

«2  Plxley  V.  Boynton,  79  IlL  351;  Whitesides  v.  Hunt,  97  Ind.  191;  Greg- 
ory V.  Wendell,  39  Mich.  337;  Bangs  v.  Homick,  30  Fed.  97;  Clark,  Cont  412. 

SALES— 10 


146  ILLEGALITY.  [Ch.   6 

for  the  price,  nor  the  buyer  foi-  the  goods."'  Nor  can  either  set 
it  up  as  a  defense,  for,  as  Lord  Mansfield  said:®*  "No  man  shall 
set  up  his  own  iniquity  as  a  defense  any  more  than  as  a  cause  of 
action."  Neither  can  the  seller,  although  the  goods  are  delivered, 
recover  on  an  implied  promise,  since  there  is  no  ground  on  which 
a  promise  can  be  implied."^  The  contract  is  void  for  all  purposes, 
and  neither  party  can  maintain  an  action  on  a  warranty  or  for 
fraudulent  representations  inducing  the  contract"  But  though 
the  contract  is  void,  if  it  has  been  executed  by  the  delivery  of  the 
goods  and  the  payment  of  the  price,  the  court  will  not  aid  either 
party  in  disaffirming  it.  The  seller  cannot  recover  his  goods,  nor 
the  buyer  his  money.'^  In  this  way  possession  acquired  under 
illegal  sales  will  often  avail  the  buyer  as  a  suflicient  title.  Neither 
party  is  allowed  to  impeach  its  validity  by  asserting  the  invalidity 
of  his  own  act,  and  the  transaction  takes  effect  from  the  inability  of 
either  party  to  impeach  it.**  The  rule  applies:  "In  pari  delictu 
potior  est  conditio  defendentis." 

It  is  not  clear,  however,  that  if  the  goods  have  been  delivered, 
but  not  paid  for,  the  seller  cannot  maintain  an  action  founded  on 
his  right  of  property  of  which  he  has  never  been  divested,  though 
the  authorities  are  conflicting.  Thus,  it  has  been  held  in  the  case 
of  a  Sunday  sale  that  the  seller  can  under  such  circumstances  main- 

«8  Holman  t.  Johnson,  1  Cowp.  341,  per  Lord  Mansfield;  Foster  v.  Thurs- 
ton, 11  Gush.  322;  Roby  v.  West,  4  N.  H.  285;  Materne  v.  Horwltz,  50  N. 
Y.  Super.  Ct.  41,  101  N.  Y.  469,  5  N.  E.  331;  Penn  v.  Bornman,  102  111.  523; 
Randon  v.  Toby,  11  How.  493.  520. 

«*  Monteflorl  v.  Montefiorl,  1  Wm.  Bl.  363. 

65  Ladd  V.  Rogers,  11  Allen,  209;  Foreman  v.  Ahl,  55  Pa.  St.  825;  O'Don- 
nell  V.  Sweeney,  5  Ala.  467;   Pike  v.  King,  16  Iowa,  49. 

«8  Hulet  V.  Stratton,  5  Cush.  539;  Uobeson  v.  French,  12  Mete.  (Mass.) 
24;  Northrup  v.  Foot,  14  Wend.  249;  Plaistod  v.  Palmer,  63  Me.  576;  Finley 
V.  Quirk,  9  Minn.  194  (Gil.  179);  Gunderson  v.  Richardson,  56  Iowa,  56,  8 
N.  W.  683;   Smith  v.  Bean.  15  N.  H.  577,  578. 

6  7  Myers  v.  Meinrath,  101  Mass.  366;  Horton  v.  Bufflnton,  105  Mass.  399; 
Green  v.  Godfrey,  44  Me.  25;  Chestnut  v.  Harbaugh,  78  Pa.  St.  473;  Ellis 
V.  Hammond,  57  Ga.  179;  Block  v.  McMurry,  56  Miss.  217;  Kinney  v.  Mc- 
Dormott,  55  Iowa,  674,  8  N.  W.  656;    Moore  v.  Kendall,  2  Pin.  99. 

88  Myers  v.  Meinrath,  101  Mass.  366,  per  Wells,  J. 


Ch.   6]  EFFECT    OF   ILLEGALITY.  147 

tain  replevin,  since  he  can  make  out  a  case  founded  on  property 
and  prior  right  of  possession  without  referring  to  the  void  con- 
tract/®    And  it  has  also  been  intimated  that  he  could  sue  for  the 
conversion.^" 
Disaffirmance  before  Execution  of  Illegal  Purpose. 

It  is  a  general  rule  that  where  money  has  been  paid  upon  a  con- 
tract whose  object,  although  illegal,  has  not  been  carried  out  by 
performance,  the  party  who  has  paid  the  money  may  disaffirm  the 
contract,  and  recover  the  money  in  an  action  for  money  had  and 
received.''^  This  rule  is  applicable  to  certain  classes  of  illegal 
sales.'^^  Thus,  where  a  corporation  passed  a  resolution  increasing 
its  capital  stock  in  violation  of  the  law,  and  the  plaintiff  agreed  to 
take  certain  shares  of  the  new  stock  when  issued,  and  paid  an 
installment  thereon,  but  the  stock  was  never  actually  increased, 
nor  were  certificates  issued,  the  court  held  that,  conceding  the 
illegality  of  the  contract,  the  plaintiff  was  entitled  to  recover  the 
money  paid  by  him  in  part  performance,  the  defendant  not  having 
performed  any  part  of  the  contract,  and  both  parties  having  aban- 
doned the  illegal  agreement  before  it  was  consummated.^^  The 
rule  was  stated  in  a  leading  English  case  ''*  as  follows:  "If  money 
is  paid,  or  goods  delivered,  for  an  illegal  purpose,  the  person  who 
had  so  paid  the  money  or  delivered  the  goods  may  recover  them 
back  before  the  illegal  purpose  is  carried  out." 

«»  Tucker  v.  Mowray,  12  Mich.  378;  Winfleld  v.  Dodge,  45  Mich.  355,  7 
N.  W.  906.  See,  also,  Magee  v.  Scott,  9  Gush.  148.  Contra,  Smith  v.  Bean, 
15  N.  H.  577,  578;   Kinney  v.  McDermott,  55  Iowa,  674,  8  N.  W.  656. 

7  0  Ladd  V.  Rogers,  11  Allen,  209.  See,  also,  Myers  v.  Meinrath,  101  Mass. 
366,  369;   Hall  v.  Corcoran,  107  Mass.  251;   Cranson  v.  Goss,  Id.  439,  441. 

Ti  Taylor  v.  Bowers,  1  Q.  B.  Div.  291;  Barclay  v.  Pearson  [1893]  2  Ch. 
154;  Congress  &  Empire  Spring  Co.  v.  Knowlton,  103  U.  S.  49;  White  v. 
Franklin  Bank,  22  Pick.  181,  189;  Tyler  v.  Carlisle,  79  Me.  210,  9  Atl.  356; 
Clarke  v.  Brown,  77  Ga.  606;  Peters  v.  Grim,  149  Pa.  St.  163,  24  Atl.  192; 
Souhegan  Nat.  Bank  v.  Wallace,  61  N.  H.  24;  Adams  Exp.  Co.  v.  Reno,  48 
Mo.  264.  Contra,  Knowlton  v.  Congress  &  Empire  Spring  Co.,  57  N.  Y. 
518,  Dwight,  C,  dissenting. 

T«  Benj.  Sales,  §  503a;    Clark,  Cent.  494. 

T8  Congress  &  Empire  Spring  Co.  v.  Knowlton,  103  U.  S.  49l 

T*  Taylor  v.  Bowers,  1  Q.  B.  Div.  291,  per  Mellish,  L,  J. 


148  ILLEGALITY.  [Ch.  6 

Separable  Contract. 

As  a  general  rule  governing  all  contracts,  if  any  part  of  the  con 
sideration  is  illegal,  the  whole  contract  is  void.^"*  This  rule  applies 
to  sales,  and,  where  such  illegality  exists,  the  seller  cannot  recover 
the  price/"  Rut  if  the  contract  is  separable,  so  that  it  is  clear 
that  the  parties  intend  it  to  be  carried  into  effect  piecemeal,  the 
illegality  of  one  part  will  not  prevent  the  legal  part  from  being  on- 
forced."  Thus,  when  each  article  is  sold  for  a  separate  price, 
the  price  of  those  articles  which  it  was  lawful  to  sell  may  be  re- 
covered J*  If,  however,  a  note  is  given  for  the  price  of  all  the 
articles,  there  can  be  no  recovery  upon  it,  since  the  note  is  based  in 
part  upon  an  illegal  consideration.''®  But  if  more  than  one  note 
is  given,  and  the  legal  items  equal  the  amount  of  one  of  the  notes, 
a  recovery  can  be  had  upon  it,  because  the  plaintiff  has  the  right 
to  appropriate  the  other  note  to  the  illegal  items.^'^ 

The  rule  that  the  illegality  does  not  avoid  the  entire  contract  if 
it  is  divisible  applies  whetlier  the  illegality  exists  by  statute  or  by 
common  law,®^  although  it  was  formerly  held  that  it  did  not  apply 
where  the  illegality  was  created  by  statute,  which  it  was  said  "is 
like  a  tyrant, — where  he  comes,  ho  makes  all  void." 

TBWalte  V.  Jones,  1  Bing.  N.  C.  656;  Jones  v.  Waite,  5  Bing.  N.  C.  341; 
Trist  v.  Child,  21  Wall.  441;    Clark,  Cent.  471. 

76  Holt  V.  O'Brien,  15  Gray,  311;  Woodiniff  v.  Hinman,  11  Vt.  592;  T^ing 
V.  McCall,  50  Vt  657;  Filson  v.  Hlmes,  5  Pa.  St.  452;  Ladd  v.  Dillingham, 
34  iSIe.  316. 

TT  Odessa  Tramways  Co.  v.  Mendel,  8  Ch.  Dlv.  235. 

7  8  Boyd  v.  Eaton,  44  Me.  51;  Carleton  v.  Woods,  28  N.  H.  290;  Walker  ▼. 
Lovell,  Id.  138;  Barrett  v.  Delano  (Me.)  14  Atl.  288;  Chase  v.  Burkholder, 
18  Pa.  St.  48;    Clark,  Cont.  472.    See,  also,  Shaw  v.  Carpenter,  54  Vt.  155. 

7»  Deering  v.  Chapman,  22  Me.  488;  Cobura  v.  Odell,  30  N.  H.  540;  Kidder 
v.  Blake,  45  N.  H.  530;  Allen  v.  Pearce,  84  Ga.  606,  10  S.  E.  1015;  Gotten 
V.  McKenzie,  57  Miss.  418;  Widoe  v.  Webb,  20  Ohio  St.  431;  Braltch  v. 
Guelick,  37  Iowa,  212;  Clark,  Cont.  473.  See,  also,  Shaw  v.  Carpenter,  54 
Vt.  155. 

80  Crookshank  v.  Ilose,  5  Car.  &  P.  19;  Warren  v.  Chapman,  105  Mass.  87. 
See,  also,  Hynds  v.  Hays,  25  Ind.  31. 

81  Pickering  v.  ILfracombe  Ily.  Co.,  L.  R.  3  C.  P.  250;  U.  S.  v.  Bradley,  10 
Pet.  843;   Rand  v.  Mather,  11  Cush.  1,  7;   Anson,  Cont.  189;   Clark,  Cont.  472. 


Ch.  6]  CONFLICT    OF    LAWS.  149 


CONFLICT  OF  LAWS. 

82.  The  legality  of  a  contract  of  sale  is  determined  by 
the  lavr  in  force  -where  the  sale  is  executed. 

As  a  rule,  the  validity  of  a  contract  of  sale  is  determined  by  the 
lay/  of  the  state  where  the  sale  is  executed.  If  the  sale  is  valid  where 
executed,  it  will  be  enforced,  even  in  a  state  where  it  could  not  be 
lawfully  executed.®^  But  the  comity  which  induces  a  state  to 
enforce  a  foreign  contract  does  not  extend  to  the  enforcement  of  a 
copt^'act  entered  into  with  the  design  of  evading  its  laws.  Accord- 
ingly^ a  sale  of  intoxicating  liquors  or  other  goods,  executed  with 
the  mutual  de  ugn  of  reselling  in  violation  of  the  laws  of  another 
state,  will  not  be  enforced  in  the  state  whose  laws  are  sought  to  be 
violated,®^  or  even  in  the  state  where  the  sale  is  made,**  though  it 
seems  that  the  courts  will  not  recognize  the  revenue  laws  of  another 
country.*^ 

The  validity  of  a  sale  is  determined  by  the  law  in  force  at  the 
time  of  its  execution,  and  a  subsequent  change  in  the  law  will  not 
validate  an  invalid  sale.*^ 

82  Greenwood  v.  Curtis,  6  Mass.  358;  Orcutt  v.  Nelson,  1  Gray,  536;  Tor- 
rey  v.  Corliss,  33  Me.  333;  Dame  v.  Flint,  6-1  Vt.  533,  24  Atl.  1051;  Braunu 
V.  Keally,  146  Pa.  St.  519,  23  Atl.  389;  Wagner  v.  Breed,  29  Neb.  720.  46 
N.  W.  286. 

83  Waymell  v.  Reed,  5  Term  R.  599;  Webster  v.  Munger,  8  Gray,  584;  Gay- 
lord  v.  Soragen,  32  Vt  110;  Fisher  v.  Lord,  63  N.  H.  514,  8  AtL  927;  Davis 
T.  Bronson,  6  Iowa,  410;  Clark,  Cont.  502. 

84  Graves  v.  Johnson,  156  Mass.  211,  30  N.  E.  818, 

8  0  Story,  Confl.  Law,  §§  245,  256,  257;    Clark,  Cont.  502. 
86  Roby  v.  West,  4  N.  H.  285;    Banchor  v.  Mansel,  47  Me.  58;    Bailey  ▼. 
Mogg,  4  Denlo,  60;   Handy  v.  Publishing  Co.,  41  Minn.  188,  42  N.  W.  872. 


150  CONDITIO.NS    AND    WARRANTIES.  £Ch.  7 

CHAPTER  Vn. 

CONDITIONS  AhiD   WARRANTIES. 

83-84.    In  General. 

85.  Performance  of  Conditions  Precedent. 

86.  Condition  In  Sale  by  Description. 

87-89.  Excuses  for  Nonperformance  of  Conditions. 

90-91.  Warranties. 

02-93.  Express  Warranties. 

94.  Implied  Warranty  of  Title. 

05.  Implied  Warranties  of  Quality. 

IN  GENERAL. 

83.  CONDITION'S — A  statement  or  promise  which  forms 
the  basis  of  a  contract,  and  the  untruth  or  nonperformance 
of  which  discharges  the  contract,  is  termed  a  "condition." 
The  fulfillment  of  the  condition  is  a  condition  precedent 
to  the  obligation  of  the  party  in  whose  favor  it  exists  to 
perform. 

84.  WARRANTIES — An  agreement  with  reference  to 
the  subject  of  the  contract,  but  collateral  to  its  main  pur- 
pose, is  termed  a  "w^arranty." 

The  subjects  of  representation,  condition,  and  warranty  run  so 
closely  together  that  it  is  difficult  to  treat  them  separately.  A 
representation  made  at  the  time  a  contract  is  entered  into  may  be 
false  and  fraudulent,  and  thus,  as  we  have  seen,^  prevent  the  con- 
tract from  ever  being  effectually  formed,  or  it  may  form  a  term  of 
the  contract,  and  amount  either  to  a  condition  or  a  warranty.* 
The  promises  of  the  parties  to  a  contract  may  be  independent  or 
may  be  conditional  upon  one  another.  If  they  are  independent, 
failure  by  one  of  the  parties  to  perform  his  promise  does  not  dis- 
charge the  contract;    that  is,  does  not  exonerate  the  other  party 

1  Ante,  p.  Ill  et  seq. 

«  Benj.  Sales,  §  5G1  et  seq;  Clark,  Cont.  661,  671. 


Ch.  7]  IN    GENERAL.  151 

from  liability  to  perform  his  promise.  Wliere  the  promise  of  one 
party  is  conditional  upon  the  promise  of  the  other,  the  performance 
of  the  latter  promise  is  either  a  condition  precedent  or  a  condition 
concurrent,  as  the  case  may  be,  to  the  obligation  of  the  other  party 
to  perform.  If  it  is  a  condition  precedent,  it  must  be  performed 
before  the  obligation  of  the  other  party  to  perform  can  arise;  if 
it  is  a  condition  concurrent,  it  must  be  performed  simultaneously 
with  the  promise  of  the  other  party,  or,  in  point  of  fact,  since  simul- 
taneous performance  is  impossible  except  in  contemplation  of  law, 
there  must  be  concurrent  willingness  to  perform  the  two  promises.^ 
In  either  case,  the  nonperformance  of  the  condition  discharges  the 
contract. 

A  promise  upon  the  performance  of  which  the  promise  of  the 
other  party  is  conditional  may  go  to  the  whole  consideration,  that 
is,  it  may  form  the  entire  consideration  for  the  promise  of  the  other 
party.  The  term  "condition,"  however,  is  more  commonly  used  in 
a  narrower  sense,  as  meaning  a  single  term  in  a  contract,  but  pos- 
sessing a  peculiar  character.  In  this  sense,  a  "condition"  may  be 
defined  as  a  statement  or  promise  which  forms  the  basis  of  the  con- 
tract, and  the  untruth  or  nonperformance  of  which  discharges  the 
contract*  "Conditions"  are  to  be  distinguished  from  "warranties," 
although  both  terms  are  often  loosely,  and  even  interchangeably, 
used.**  A  "warranty"  differs  from  a  "condition,"  in  that  its  ful- 
fillment is  not  a  condition  precedent,  and  its  breach  does  not  dis- 
charge the  contract,  but  in  general  simply  gives  to  the  injured  party 

3  Anson,  Cont.  289;   Clark,  Cont  664. 

*  Paragraph  83,  ante;   Anson,  Cont.  294;   Clark,  Cont.  674;    Dorr  v.  Fisher, 

1  Cush.  271,  273.  "A  statement  descriptive  of  the  subject-matter  or  of  some 
material  incident,  such  as  the  time  or  place  of  shipment,  is  ordinarily  to 
be  regarded  a  'warranty,'  in  the  sense  in  which  that  term  is  used  in  insur- 
ance and  maritime  laws;  that  is  to  say,  a  condition  precedent  upon  the 
failure  or  nonperformance  of  which  the  party  aggrieved  may  repudiate  the 
whole  contract."  Norrington  v.  Wright,  115  U.  S.  188,  203,  6  Sup.  Ct.  12, 
per  Gray,  J.    See,  also,  Behn  v.  Burness,  3  Best  &  S.  751;    Bowes  v.  Shand, 

2  App.  Cas.  455;  Lowber  v.  Bangs,  2  Wall.  728;  Davison  v.  Von  Lingen, 
118  U.  S.  40,  5  Sup.  Ct.  346. 

8  Chalm.  Sales,  p.  94;  Clark,  Cont.  673.  Sir  William  Anson  has  collected 
six  different  senses  in  which  the  term  "warranty"  is  used  in  the  cases. 
Anson,  Cont.  295;   post,  p.  155. 


\'^2  CONDITIONS    AND    WARRANTIES.  [Ch.  7 

a  light  of  notion  for  such  damages  as  he  has  sustained  by  failure 
of  the  other  to  perfonn  his  promise;  although,  as  we  shall  see  in 
considering  the  remedies  of  the  buyer,  some  courts  permit  him  to 
rescind  the  sale  for  a  breach  of  an  express  warranty. 

The  difficulty  lies  in  discovering  whether  the  parties  regarded 
a  particular  term  as  essential  to  the  contract.  If  they  did,  it  is 
a  condition  ;  its  performance  is  a  condition  precedent,  and  its 
failure  discharges  the  contract.  If  they  did  not,  it  is  a  warranty; 
its  failure  can  only  give  rise  to  an  action  for  damages.  The  ques- 
tion whether  a  particular  term  in  a  contract  is  a  condition  or  a 
warranty  is  a  question  of  intention,  and  depends  upon  the  construc- 
tion of  eacli  individual  contract.  Various  rules  of  construction  for 
ascertaining  the  intention  have  been  attempted;  but  the  only  rule 
that  can  safely  be  laid  down  is  that  the  intention  is  to  be  ascer- 
tained from  the  language  of  the  parties  and  the  circumstances  under 
which  the  contract  is  made.®  As  was  said  by  Blackburn,  J.:  "Par- 
ties may  think  some  matter,  apparently  of  very  little  importance, 
essential;  and,  if  they  sufficiently  express  an  intention  to  make  the 
literal  fulfillment  of  such  a  thing  a  condition  precedent,  it  will  be 
one;  or  they  may  think  that  the  performance  of  some  matter, 
apparently  of  some  importance  and  prima  facie  a  condition  pre- 
cedent, is  not  really  vital,  and  may  be  compensated  for  in  damages, 
and  if  they  sufficiently  expressed  such  an  intention,  it  will  not  be 
a  condition  precedent." ' 

PERFORMANCE  OF  CONDITIONS   PRECEDENT. 

85.  Where  the  promise  of  a  party  to  a  contract  of  sale 
is  conditional  upon  the  fulfillment  of  a  condition  preced- 
ent, the  other  party  cannot  sue  upon  the  contract  until 
the  condition  has  been  fulfilled  or  its  nonfulfillment 
excused. 

•  Graves  v.  Legg,  9  Exch.  709,  23  Law  J.  Exch.  228;  Behn  v.  Burness,  32 
Law  J.  Q.  B.  204,  205;  Watchman  v.  Crook,  5  Gill  &  J.  239;  Maryland 
Fertilizing  &  Manuf'g  Co.  v.  Lorentz,  44  Md.  218;  Grant  v.  Johnson,  5  N. 
Y.  247;  Knight  v.  New  England  Worsted  Co.,  2  Cush.  271,  287;  Mill-Dam 
Poundery  v.  Hovey,  21  Pick.  417,  per  Shaw,  C.  J.;  Anson,  Cent  135,  286; 
Clark,  Cont.  652,  661. 

T  Bettini  v.  Gye,  1  Q.  B.  Div.  187. 


Ch,   7]  PERFORMANCE    OF    CONDITIONS    PRECEDENT.  153 

From  the  very  nature  of  a  condition  precedent,  it  results  that  it 
must  be  strictly  performed  before  the  party  on  whom  its  perform- 
ance is  incumbent  can  call  on  the  other  party  to  fulfill  his  promise. 
Thus,  as  we  shall  see,®  even  impossibility  of  performance  is,  as  a 
rule,  no  excuse  for  nonperformance.  The  strictness  with  which 
conditions  precedent  are  enforced  will  be  illustrated  by  reference 
to  several  of  the  conditions  which  frequently  occur  in  sales.  The 
principal  questions  in  the  law  of  sales  relating  to  conditions  are 
connected  with  delivery  and  payment,  and  will  be  discussed  here- 
after. 
Suspensory  Conditions. 

It  is  to  be  observed  that  there  is  a  distinction  between  condi- 
tions precedent  the  nonfulfillment  of  which  effects  a  discharge  of 
the  contract  by  breach,  and  conditions  precedent  which  merely 
suspend  the  operation  of  the  promise  until  they  are  fulfilled.  Con- 
ditions of  the  latter  class  are  called  "suspensive"  or  "suspensory." 
A  promise  is  conditional  in  this  sense  when  it  is  conditional,  not 
upon  some  statement  to  be  made  good  or  promise  to  be  performed 
by  the  other  party,  but  upon  the  occurrence  of  something  beyond 
his  control,  as  where  a  sale  is  dependent  on  the  act  of  a  third  per- 
son, or  upon  the  buyer's  approval  of  the  goods.® 
Sale  Dependent  on  Act  of  Third  Person. 

Where  the  performance  of  a  contract  is  made  dependent  on  the 
act  of  a  third  person,  the  act  must  be  performed  before  the  rights 
dependent  on  it  can  be  enforced,  ^°  even  though  the  third  person 
unreasonably  refuses  to  act.  Thus  where  the  seller  sold  his  horse 
for  one  shilling  cash,  and  a  further  payment  of  £200,  provided  the 
horse  should  trot  18  miles  an  hour  within  a  month,  "J,  N.  to  be  the 
judge  of  the  performance,"  it  was  held  no  defense  to  the  buyer's  ac- 
tion for  the  delivery  of  the  horse  that  J.  N.  refused  to  be  present  at 
the  trial. ^^  So  where  the  contract  is  for  the  sale  of  goods  at  a 
valuation  to  be  made  by  two  persons,  one  in  behalf  of  each  party, 

8  Post,  p.  158. 

»  Anson,  Cont.  277;  Clark,  Cont  665;  Chalm.  Sale,  p.  4. 

10  u.  S.  V.  Robeson,  9  Pet.  319,  327;  Johnson  v.  Phoenix  Ins.  Co.,  112 
Mass.  49;  Leadbetter  v.  Etna  Ins.  Co.,  13  Me.  265;  Smith  v.  Briggs,  3  Deni^, 
73;   Kirtland  v.  Moore,  40  N.  J.  Eq.  106,  2  Atl.  269. 

11  Brogden  v.  Marriott,  2  Bing.  N.  C.  473. 


154  CONDITIONS    AND    WARRANTIES.  [Ch.  7 

the  refusal  of  the  person  who  was  to  act  in  behalf  of  the  buyer  to 
proceed  with  the  valuation  was  held  to  be  a  bar  to  the  seller'^ 
action,  unless  the  refusal  was  caused  by  the  buyer.'*  If,  however, 
the  buyer  consumes  the  goods  pending  the  valuation,  the  seller  may 
recover  on  a  quantum  valebant.'^ 
Sale  of  Goods  to  he  Satisfactory. 

Where  the  contract  is  for  the  sale  of  goods  to  be  made  by  the 
seller  according  to  the  buyer's  order,  and  it  is  a  term  of  the  con- 
tract that  the  goods  shall  be  satisfactory  to  the  buyer,  the  satis- 
faction of  the  buyer  is  a  condition  precedent  to  the  buyer's  obli- 
gation to  accept  and  pay  for  the  goods.  It  is  immaterial  that  the 
goods  are  such  that  the  buyer  ought  to  have  been  satisfied  with 
them.  Although  the  compensation  of  the  seller  may  thus  be  de- 
pendent on  the  caprice  of  the  buyer,  who  unreasonably  refuses  to 
accept  the  goods,  yet  the  seller  cannot  be  relieved  from  the  con- 
tract into  which  he  voluntarily  entered.'*  Of  course,  the  parties 
may  agree  that  the  satisfactoriness  is  to  be  determined  by  the  mind 
of  a  reasonable  man,  and  not  by  the  mere  taste  or  liking  of  the  de- 
fendant.'* 
Stipulations  as  to  Time — When  Tinie  of  Essence. 

In  determining  whether  stipulations  as  to  time  are  conditions 
precedent,  the  court  seeks  to  discover  what  the  parties  really  in- 
tended, and  if  time  appears,  on  a  fair  consideration  of  the  language 
and  the  circumstances,  to  be  of  the  essence  of  the  contract,  stipu- 
lations in  regard  to  it  will  be  held  conditions  precedent."  In 
mercantile  transactions,  however,  such  as  the  sale  of  goods,  time  is 

12  Thurnell  v.  Balblrnie,  2  Mees.  &  W.  786. 

18  Clarke  v.  Westrope,  18  C.  B.  7(55,  25  Law  J.  C.  P.  287;  Humaston  y. 
Tele&raph  Co.,  20  Wall.  20,  28. 

i<  McCarren  v.  McNulty,  7  Gray.  139;  Brown  v.  Foster,  113  Mass.  136; 
Zaleski  v.  Clark,  44  Conn.  218;  McClure  v.  Briggs,  58  Vt.  82,  2  Atl.  583; 
Seeley  v.  Welles,  120  Pa.  St.  69,  13  Atl.  736;  Gibson  v.  Cranage,  39  Mich. 
49;  Goodrich  v.  Van  Nortwick,  43  111.  445;  McCormick  Harvesting  Mach. 
Co.  V.  Chesrown,  33  Minn.  32,  21  N.  W.  846;  Warder,  Busbnell  &  Glessner 
Co.  V.  Whitish,  77  Wis.  430,  46  N.  W.  540;  D.  M.  Osborne  &,  Co.  v.  FrancU, 
38  W.  Va.  312,  18  S.  E.  591;  Clark,  Cont.  666. 

16  Hawkins  v.  Graham,  149  Mass.  284,  21  N.  B.  312. 

16  Benj.  Sales,  §  593.  Cited  with  approval  by  Folger,  J.,  In  HIggins  v. 
Delaware,  L.  &  W.  R.  Co.,  60  N.  Y.,  at  page  557;   and  see  Clark,  Cont.  596. 


Ch.  7]  CONDITION    IN    SALE    BY    DESCRIPTION.  166 

generally  held  to  be  the  essence  of  the  contract;  and,  where  one  of 
the  terms  of  the  contract  provides  for  the  time  of  shipment  or 
delivery,  shipment  or  delivery  at  the  time  fixed  will  usually  be 
regarded  as  a  condition  precedent,  on  the  failure  of  which  the  other 
party  may  repudiate  the  entire  contract.*^  But  it  seems  that,  un- 
less a  contrary  intention  appears,  stipulations  as  to  the  time  of 
payment,  inasmuch  as  payment  as  a  rule  follows  delivery,  are  not 
usually  deemed  to  be  of  the  essence  of  the  contract^' 

CONDITION  IN  SALE  BY  DESCRIPTION. 

86.  Where  there  is  a  contract  for  the  sale  of  goods  by- 
description,  there  is  an  implied  condition  (sometimes 
called  a  "warranty")  that  the  goods  shall  correspond  with 
the  description. 

When  goods  are  sold  by  description,  it  is  a  condition  precedent 
to  the  seller's  right  of  action  on  the  contract  that  the  goods  should 
conform  to  the  description.  Properly  speaking,  the  undertaking 
that  the  goods  shall  so  conform  is  a  "condition,"  as  distinguished 
from  a  "warranty,"  and  Benjamin  and  the  English  writers  so  de- 
scribe it,^*  though  the  cases  are  not  free  from  confusion  arising 
from  the  application  to  it  of  the  term  "warranty."  This  was  pointed 
out  in  Chanter  v.  Hopkins  ^'^  by  Lord  Abinger,  who  observed:  "Two 
things  are  confounded  together.  •  ♦  «  If  a  man  offer  to  buy  peas 
of  another,  and  he  send  him  beans,  he  does  not  perform  his  contract. 
But  that  is  not  a  warranty.     There  is  no  warranty  that  he  should 

IT  Reuter  v.  Sala,  4  C.  P.  Div.  239,  246,  249;  Bowes  v.  Shand,  2  App.  Cas. 
455,  463;  Norrington  v.  Wright,  115  U.  S.  188,  6  Sup.  Ct  12;  Cleveland 
Rolling  Mills  V.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882;  Jones  v.  U.  S.,  96 
U.  S.  24;  Camden  Iron  WorlvS  v.  Fox,  34  Fed.  200;  Rouse  v.  Lewis,  4  Abb. 
Dec.  121;  Pope  v.  Porter,  102  N,  Y.  366,  7  N.  E.  304;  Rommel  v.  Wingate, 
103  Mass.  327;  Clark,  Cont.  597,  598. 

18  Martindale  v.  Smith,  1  Q.  B.  389,  395;  Mersey  Steel  &  Iron  Co.  v.  Nay- 
lor,  9  App.  Cas.  434,  444;  Chalm.  Sale,  §  12;  Clark,  Cont  596.  See  Nor- 
rington V.  Wright,  cited  in  preceding  note,  per  Gray,  J. 

19  Benj.  Sales,  §  600;   Chalm.  Sale,  §  16;   Kerr,  Dig.  Sales,  §  75, 

20  4  Mees.  &  W.  399.  See,  also,  Bowes  v.  Shand,  2  App.  Cas.  455,  480,  per 
Lord  Blackburn. 


156  CONDITIONS    AND    WARRANTIES.  [Ch.  7 

sell  hini  poos;  the  contract  is  to  sell  peas,  and,  if  he  sells  him  any- 
thing else  in  their  stead,  it  is  a  nonperformance  of  it"  But,  what- 
ever the  confusion  in  terms,  the  law  is  clear:  If  the  sale  is  of  a 
desci-ibed  article,  the  Ic^uder  of  an  article  answering  the  descrip- 
tion is  a  condition  precedent  to  the  buyer's  liability,  and,  if  the  con- 
dition is  not  performed,  the  buyer  is  entitled  to  reject  the  article, 
and,  if  he  has  paid  for  it,  to  recover  the  price  as  money  had  and 
received  for  his  use."^  Thus,  where  the  contract  was  for  turnip 
seed  described  as  "Skirvings  Swedes,"  it  was  not  satisfied  by  a 
tender  of  turnip  seed  of  a  different  sort.^^  And,  although  the  sale 
is  by  sample,  it  is  not  sufficient  that  the  bulk  corresponds  with  the 
sample  if  it  does  not  also  correspond  with  the  description.^^  For 
example,  where  the  sale  was  of  "foreign  refined  rape  oil,  warranted 
only  equal  to  sample,"  and  the  oil  corresponded  with  the  sample,  but 
the  jury  found  that  it  was  not  "foreign  refined  rape  oil,"  it  was  held 
that  the  buyer  was  not  bound  to  receive  it'* 
Rule  in  United  States. 

In  the  United  States  the  cases  generally  declare  that  words  of 
descnption  imply  a  warranty  that  the  goods  shall  conform  to  the 
description.'"  "There  is  no  doubt,"  says  Shaw,  C.  J.,  "that,  in  a 
case  of  sale,  words  of  description  are  held  to  constitute  a  warranty 
that  the  articles  sold  are  of  the  species  and  quality  so  described."  " 
Thus,  where  the  article  sold  was  described  in  the  bill  of  parcels  as 
"blue  paint,"  it  was  held  that  this  amounted  to  a  warranty  that  the 
article  should  be  blue  paint,  and  not  a  different  article;  *^  and,  where 

21  Josling  V.  Kingsford,  32  Law  J.  C.  P.  94;  Mody  v.  Gregson,  L.  R.  4 
Exch.,  at  page  53;    Borrowinan  v.  Drayton,  2  Exch.  Div.  15. 

2  2  Allan  V.  Lake,  18  Q.  B.  5G0. 

23  Xicbol  V.  Godts,  10  Exch.  191,  23  Law  J.  Exch.  314;  Azemar  v.  Casella, 
L.  K.  2  C.  P.  677. 

2  4  Nichol  V.  Godts,  10  Exch.  191,  23  Law  J.  Exch.  314. 

2  6  Hastings  v.  Lovering,  2  Pick.  214;  Henshaw  v.  Robins,  9  Mete.  (Mass.) 
83;  Borrekins  v.  Bevan,  3  Rawle,  23;  Ilolloway  v.  Jacoby,  120  Pa.  St  583, 
15  Atl.  487;  Osgood  v.  Lewis,  2  Har.  &  G.  495;  Hawkins  v.  Pemberton,  51 
N.  Y.  198;  White  v.  Miller,  71  N.  Y.  118;  Lewis  v.  Rountree,  78  N.  C.  323; 
Whitaker  v.  McCormick,  6  Mo.  App.  114;   Flint  v.  Lyon,  4  Cal.  17. 

28  Hogins  V.  Plympton,  11  Pick.  97,  99;   Winsor  v.  Lombard,  18  Pick.  57,  60. 

«7  Borrekins  v.  Bevan,  3  Rawle,  23. 


Ch.   7]  EXCUSES    FOR    KON PERFORMANCE    OF    CONDITIONS.  157 

seed  was  sold  as  "Bristol  Cabbage"  seed,  this  was  held  to  be  a 
warranty  that  the  seed  was  of  the  kind  mentioned.^ ^ 

It  seems,  however,  that  the  rule  of  law  differs  little,  if  at  all, 
from  that  prevailing  in  England;  for,  althoagh  there  is,  as  we  shall 
see,  in  considering  the  buyer's  remedies,  some  disagreement  as  to 
his  remedy  for  breach  of  warranty  in  certain  cases,^®  all  the  au- 
thorities agree  that  he  may  decline  to  accept  the  goods  if  they  fail 
to  conform  to  the  description.^"  The  law  is  clearly  stated  in 
Pope  V.  Allis,^^  a  recent  case  in  the  supreme  court  of  the  United 
States.  The  point  decided  was  that  the  buyer  could  recover  the 
price  of  iron  paid  for  before  delivery,  and  rejected  after  inspection, 
for  failure  to  conform  to  the  grade  required  by  the  contract.  Woods, 
J.,  said:  "When  the  subject-matter  of  a  sale  is  not  in  existence, 
or  not  ascertained  at  the  time  of  the  contract,  an  understanding 
that  it  shall,  when  existing  or  ascertained,  possess  certain  qualities, 
is  not  a  mere  warranty,  but  a  condition;  the  perfonnance  of 
which  is  precedent  to  any  obligation  upon  the  vendee  under  the 
contract" 

EXCUSES  FOR  NONPERPORMANCE  OF  CONDITIONS. 

87.  WAIVER — The  performance  of  a  condition  preced- 
ent may  be  waived.  • 

88.  RENUNCIATION  OF  CONTRACT— A  party  to  a 
contract  of  sale,  on  whom  the  performance  of  a  condition 
precedent  rests,  is  excused  from  performance,  if  before  or 

28  White  V.  Miller,  71  N.  Y.  118. 

28  Post,  p.  244. 

80  Pope  V.  AUis,  115  U.  S.  3G3,  371,  6  Sup.  Ct  69.  See,  also,  Norrington 
V.  Wright,  115  U.  S.  188,  203,  6  Sup.  Ct.  12,  per  Gray,  J.;  Filley  v.  Pope, 
115  U.  S.  213,  G  Sup.  Ct.  19;  Avery  v.  Miller,  118  Mass.  500;  Dailey  v. 
Green,  15  Pa.  St.  118;  Woodle  v.  Whituey,  23  Wis.  55,  and  cases  cited 
in  following  note;  Wolcott  v.  Mount,  36  N.  J.  Law,  202  (pointing  out  that  if 
the  buyer  has  accepted  part  performance  the  buyer  may  treat  the  breach 
of  condition  as  a  breach  of  warranty);  Haase  v.  Nonnemacher,  21  Minn. 
486,  490,  per  Gilfillan,  C.  J.;  Jones  v.  George,  61  Tex.  345,  349;  Bagley  v. 
Cleveland  RoUing-Mill  Co.,  21  Fed.  159,  162;  Morse  v.  Moore,  83  Me.  473, 
479,  22  Atl.  302. 

»i  115  U.  S.  363,  371,  6  Sup.  Ct.  69. 


158  CONDITIONS    AND   WARRANTIES.  [Ch.  7 

at  the  time  of  performance  the  other  party  absolutely 
refuses  to  perform  or  incapacitates  himself  from  perform- 
ance. 

89.  IMPOSSIBILITY  OF  PERFORMANCE— Impossibil- 
ity arising  after  the  formation  of  the  contract  is  not  an 
excuse  from  performance,  unless  the  impossibility  results 
either — 

(a)  From   the   destruction   of  the  specific  goods  which 

are  the  subject  of  sale,  or 

(b)  From  a  change  in  the  law. 

Waiver. 

The  performance  of  a  condition  may  be  waived  by  the  party  In 
whose  favor  it  exists,  either  expressly  or  by  implication.  For 
example,  the  condition  of  payment  on  delivery  implied  in  every  sale 
not  on  credit  is  waived  by  the  delivery  of  the  goods  without  re- 
quiring payment.^*  And  a  party  may  waive  a  condition  by  re- 
fusing or  obstructing  performance.^^  Another  example  of  waiver 
occurs  when  the  buyer  elects  to  treat  nonperformance  of  a  condi- 
tion for  his  benefit,  not  as  a  ground  for  rescission,  but  as  a  breach 
of  warranty;  that  is,  when  he  elects  to  go  on  with  the  contract, 
and  to  seek  his  remedy  in  an  action  for  damages.^* 
Renunciation  of  Contract. 

The  performance  of  a  condition  precedent  is  not  necessary  if  the 
other  party,  before  the  time  for  performance  arrives,  absolutely 
refuses  to  perform,  or  incapacitates  himself  from  performing,  his 
promise.      "Lex  neminem  ad  vana  cogit." 

The  renunciation  must  amount  to  an  absolute  refusal  to  per- 
form.^'     Such  a  renunciation  is  generally  held  to  be  equivalent  to  a 

3  2  Ante,  p.  89.     See  Clark,  Cont.  676. 

8  8  Hotham  v.  East  ludia  Co.,  1  Term  R.  645;  Cort  v.  Ambergate,  N.  & 
B.  &  E.  J.  Ry.  Co.,  17  Q.  B.  127;  Hosmer  v.  Wilson,  7  Mich.  294;  Butler  v. 
Butler,  77  N.  Y.  472,  475;  Allen  v.  Jarvis,  20  Conn.  38;  Borden  v.  Borden, 
5  Mass.  G7;    U.  S.  v.  Peck,  102  U.  S.  65. 

84Behn  v.  Bumess,  32  Law  J.  Q.  B.  204;  Heilbutt  v.  Hickson,  L.  R.  7  C. 
P.  438.  450;   post,  p.  240. 

86  Johnstone  v.  Milling,  16  Q.  B.  Div.  400;  Dingley  v.  Oler,  117  U.  S.  490, 
«  Sup.  Ct.  850;    Smoot's  Case,  15  Wall.  36.    As  to  renunciation,  see  Clark, 


Ch.   7]  EXCUSES    FOU    NONPERFORMANCE    OF    CONDITIONS.  159 

breach  of  the  contract,  and  to  entitle  the  other  party  to  sue  for 
the  breach  without  waitinj^  for  the  time  fixed  by  the  contract  for 
performance.^*  But  the  other  party  may  refuse  to  accept  the  re- 
nunciation, and  may  insist  upon  the  performance  of  the  contract.^^ 
The  effect  of  the  renunciation,  however,  if  not  withdrawn,  is  to  ex- 
cuse him  from  tendering  performance  of  the  conditions  incumbent 
upon  him.^^  The  rule  applies  equally  to  a  renunciation  after 
partial  performance.  Thus,  if  after  a  partial  delivery  the  buyer 
gives  notice  to  the  seller  that  he  will  accept  no  further  deliveries, 
the  seller  may  sue  for  breach  of  contract  without  averring  per- 
formance, and  upon  the  simple  averment  that  he  was  ready  and  will- 
ing to  perform,  and  had  been  prevented  from  so  doing  by  the 
buyer.^^ 

A  fortiori  the  contract  is  discharged  when  one  of  the  parties 
makes  it  impossible  to  perform  his  promise.  Thus  where  the  seller 
agrees  to  sell  a  specified  ox,  and  before  the  time  for  delivery  con- 
sumes it,***  or  contracts  to  sell  specific  goods,  and  before  the  day 

Cont.  645;  and  as  to  impossibility  created  by  act  of  party,  see  Clarlj,  Cout. 
649. 

8  6  Hochster  v.  De  la  Tour,  2  El.  &  Bl.  678;  Frost  v.  Knight,  L.  R.  7  Exch. 
Ill;  Roper  v.  Jolinson,  L.  R.  8  C.  P.  167;  Dingley  v.  Oler,  11  Fed.  372; 
Windmuller  v.  Pope,  107  N.  Y.  674,  14  N.  E.  436;  Eclienrode  v.  Chemical 
Co.,  55  Md.  51;  James  v.  Adams,  16  W.  Va.  245;  Kadish  v.  Young,  108  III. 
170;  Piatt  V.  Brand,  26  Mich.  173;  McCormick  v.  Basal,  46  Iowa,  235.  Con- 
tra, Daniels  v.  Newton,  114  Mass.  530.  Whether  an  absolute  refusal  to 
perform  gives  a  right  of  action  to  sue  for  breach  before  the  expiration  of 
the  time  for  performance  is  still  an  open  question  in  the  United  States 
supreme  court.    Dingley  v.  Oler,  117  U.  S.  490,  6  Sup.  Ct.  850. 

3T  Avery  v.  Bowden,  5  El.  &  Bl.  714;  Johnstone  v.  Milling,  16  Q.  B.  Div. 
460;  Smoot's  Case,  15  Wall.  36;  Zuck  v.  McClure,  98  Pa.  St  541;  Kadish  v. 
Young,  108  111.  170;    Howard  v.  Daly,  61  N.  Y.  362. 

3  8  Bunge  v.  Koop,  48  N.  Y.  225;  Crist  v.  Armour,  34  Barb.  378;  McPherson 
v.  Walker,  40  111.  372;  Daniels  v.  Newton.  114  Mass.  530,  533.  See,  also, 
cases  cited  in  note  41,  post, 

8»Cort  v.  Ambergate,  N.  &  B.  &  E.  J.  Ry.  Co.,  17  Q.  B.  127;  Hosmer 
V.  Wilson,  7  Mich.  294;  Clement  &  Hawkes  Manuf'g  Co.  v.  Meserole,  107 
Mass.  362;  Parker  v.  Russell,  133  Mass.  74;  Haines  v.  Tucker,  50  N.  H. 
307,  311;  Cauda  v.  Wick,  100  N.  Y.  127,  2  N.  E.  381;  Textor  v.  Hutchings, 
62  Md.  150. 

*o  Benj.  Sales,  §  567;   Clark,  ConL  649. 


160  CONDITIONS    AND    WARRANTIES.  [Ch.  7 

for  delivery  sells  them  to  another,**  the  buyer  may  sue  for  the 
breach  without  tendering  the  price. 
Impossibility  of  Performance. 

As  we  have  seen,  impossibility  of  performance,  which  arises  from 
the  nonexistence  of  the  thing  sold  at  the  time  of  the  formation 
of  the  contract,  avoids  the  contract.*^  The  question  now  under 
consideration  is  how  far  impossibility  arising  subsequently  to  the 
formation  of  the  contract  discharges  it,  and  therefore  constitutes 
an  excuse  for  nonperformance. 

The  general  rule  is  that  no  impossibility  arising  subsequently  to 
the  formation  of  the  contract  is  an  excuse  for  nonperformance.*^ 
The  promisor  who  promises  unconditionally  takes  the  risk  of  being 
unable  to  perform,  even  though  his  inability  should  be  caused  by 
inevitable  accident  or  other  circumstances  beyond  his  control. 
Thus,  where  the  seller  has  contracted  to  deliver  goods,  he  is  liable 
for  failure  to  deliver,  notwithstanding  that  delivery  was  rendered 
impossible  by  frosts  or  freshets  or  other  causes  obstructing  naviga- 
tion or  transportation,**  or  by  pestilence,* °  or  by  the  destruction 
of  the  seller's  factory  by  fire,*®  or  by  droughts  stopping  his  mill.*^ 
Same — Destruction  of  Thing  Sold. 

An  exception  to  the  general  rule  arises  when  the  impossibility  is 
caused  by  the  destruction  of  the  subject-matter  of  the  contract 
before  breach,  and  without  default  of  the  contractor.  The  contract 
is  said  to  be  subject  to  an  implied  condition  to  this  effect.  There- 
fore, where  the  contract  is  for  the  sale  of  specific  goods  which 
perish  without  the  seller's  fault  before  the  day  appointed  for  de- 
livery, the  seller  is  excused  from  the  obligation  to  deliver,  and  the 

41  Bowdell  V.  Parsons,  10  East,  359;  Hawley  v.  Kceler,  53  N.  Y.  114; 
Parker  v.  Pettit,  43  N.  J.  Law,  512;  Smith  v.  Jordau,  13  Miun.  204  (Gil. 
24G);    Newcomb  v.  Brackett,  16  Mass.  161. 

42  Ante,  p.  23. 

43  Anson,  Cent.  322;   Clark,  Cont.  678. 

4  4  Kearon  v.  Pearson,  7  HurL  &  N.  386,  31  Law  J.  Exch.  1;  Harmony  v. 
Bingham,  12  N.  Y.  99;  Bacon  v.  Cobb,  45  111.  47  (seizure  of  railroad  by 
government  to  transport  troops). 

4  5  Barker  v.  Hodgson,  3  Maule  &  S.  267. 

46  Jones  V.  U.  S.,  96  U.  S.  24;  Booth  v.  Spuyten  Duyvlll  Mill  Co.,  60  N. 
Y.  487. 

4T  Eddy  V.  Clement,  38  Vt.  486. 


Ch.  7]  WARRANTIES.  Ittl 

buyer  from  obligation  to  pay/*  If,  however,  the  property  has  al- 
ready passed,  although  the  goods  are  still  in  the  possession  of  the 
seller,  the  buyer  must  pay  the  price.*' 

The  distinction  between  cases  in  which  the  destruction  of  the 
thing  sold  is  held  to  be  an  excuse,  and  those  in  which  the  per- 
formance is  prevented  by  other  causes  beyond  the  promisor's  con- 
trol, is  also  sometimes  placed  upon  the  ground  that  in  the  former 
cases  the  performance  is  physically  impossible,  "quod  natura  fieri 
non  concedit,"  and  that  in  the  latter  cases  performance  is  in  its 
nature  possible,  notwithstanding  that  the  promisor  is  unable  to 
perform  it.^" 
Same — Legal  Impossibility. 

A  second  exception  arises  where  the  impossibility  results  from  a 
change  in  the  law.  If,  after  the  contract  is  entered  into,  a  statute 
is  passed  rendering  it  illegal,  the  promisor  is  no  longer  bound."' 

WARRANTIES. 

90.  A  contract  of  sale  may  be  accompanied  by  one  or 
more  -warranties,  express  or  implied,  given  by  the  seller 
to  the  buyer. 

91.  A  \srarranty  may  be  either — 

(a)  Included  in  the  contract  of  sale,  or 

(b)  Given  after  the   contract  of  sale  is  completed; 

but,  in  the  latter  case,  it  must   be  supported 
by  a  fresh  consideration. 

A  warranty  is  not  one  of  the  essential  elements  of  a  contract  of 
sale.      It  is,  as  we  have  seen,  an  agreement  with  reference  to  the 

*«Rugg  V.  Minett,  11  East,  210;  Howell  v.  Couplaud,  L.  R.  9  Q.  B.  462, 
1  Q.  B.  Div.  258;  Dexter  v.  Norton,  47  N.  Y.  62;  Thompson  v.  Gould,  2C 
Pick.  134,  139;  Wells  v.  Calnan,  107  Mass.  514;  Gould  v.  Murch,  70  Ma 
288;   Clark,  Cent.  682. 

*»  Taylor  v.  Caldwell,  3  Best  &  S.  826,  32  Law  J.  Q.  B.  164,  per  Black- 
burn, J.    Ante,  p.  83. 

50  Jones  V.  U.  S.,  96  U.  S.  24,  per  Clifford,  J.;    Benj.  Sales,  §  570. 

61  Baily  v.  De  Crespigny,  L.  R.  4  Q.  B.  180;  Brick  Presbyterian  Church 
V,  Mayor,  etc.,  of  City  of  New  York,  5  Cow.  538;  Cordes  v.  Miller,  30  Mich, 
581;   Mississippi  &  T.  R.  Co.  v.  Green,  9  Heisk.  588;   Clark,  Cont.  681. 

SALES— 11 


162  CONDITIONS    AND   WARRANTIES.  [Ch.  7 

goods  which  are  the  subject  of  the  contract,  but  collateral  to  its 
maiu  i)nrposos.  It  must  form  part  of  the  contract,  unless  it  be 
given  after  the  contract  is  entered  into  and  is  supported  by  new 
consideration. ''^  A  subsequent  warranty  not  on  new  consideration 
is  void.^'  An  antecedent  representation,  though  made  by  the  sell- 
er as  an  inducement  to  the  buyer,  if  it  does  not  form  part  of  the 
contract  when  it  is  concluded,  is  not  a  warranty."^* 

Inasmuch  as,  by  the  rules  of  evidence,  when  once  a  contract 
has  been  reduced  to  writing,  the  entire  contract  is  deemed  to  be 
expressed  in  the  instrument,  parol  evidence  is  inadmissible  to 
prove  a  warranty  where  none  is  contained  in  the  instrument,  or  to 
vary  the  terms  of  a  warranty  therein  expressed."'  Of  course 
this  rule  does  not  exclude  such  proof  if  the  writing  is  not  the  con- 
tract, as  where  it  is  a  mere  receipt  or  bill  of  parcel s.°'  Nor  does 
an  express  warranty  necessarily  exclude  an  implied  warranty. 

EXPRESS  WARRANTIES. 

92.  Whether  the  language  of  the  parties  amounts  to  an 
express  -warranty  depends  in  each  case  upon  the  construc- 
tion of  the  contract. 

93.  An  express  -warranty  may  include  existing  defects, 
kno-wn  as  -well  as  unknow^n,  and  future  defects. 

Hofw  Created. 

No  form  of  words  is  necessary  to  create  a  warranty.  Whether 
the  words  amount  to  a  warranty  is  a  question  of  the  intention  of 
the  parties.     The  affirmation  of  a  fact  made  by  the  seller  as  an 

6  2  Congar  v.  Chamberlain,  14  Wis.  258;   Porter  v.  Pool,  62  Ga.  238. 

"3  Roscorla  v.  Thomas,  3  Q.  B.  234;  Hogins  v.  Plympton,  11  Pick.  97; 
Summers  v.  Vaughan,  35  Ind.  323;  Morehouse  v.  Comstock,  42  Wis.  62G; 
C.  Aultman  &  Co.  v.  Kennedy,  33  Minn.  339,  23  N.  W.  528. 

0*  Hopkins  v.  Tanqueray.  15  C.  B.  130,  23  Law  J.  C.  P.  162;  Zimmerman 
V.  Morrow,  28  Minn.  367,  10  N.  W.  139. 

0  8  Kain  v.  Old,  2  Bam.  &  C.  627;  Randall  v.  Rhodes,  1  Curt  90,  Fed. 
Cas.  No,  11,550;  Frost  v.  Blauchard,  97  Mass.  155;  Merriam  v.  Field,  24 
Wis.  640;   Shepherd  v.  Gilroy,  46  Iowa,  193. 

09  Allen  V.  Pink,  4  Mees.  &  W.  140;  Atwater  v.  Clancy,  107  Mass.  369; 
Filkins  y.  Whyland,  24  N.  Y.  33S;    Irwin  v.  Thompson,  27  Kan.  643. 


Ch.  7]  EXPRESS   WARRANTIES.  163 

iuducenient  to  the  sale,  if  the  buyer  relies  upon  it,  will  amount  to 
a  warranty.'^''  A  statement  of  opinion  or  a  mere  commendatory 
expression  will  not.°^  Whether  a  statement  is  an  affirmation  of 
fact,  or  whether  it  is  simply  a  statement  of  opinion  or  a  commend- 
atory expression,  often  depends  on  the  nature  of  the  sale  and  the 
circumstances  of  the  case.  If  the  language  is  not  unmistakable, 
the  question  is  for  the  jury;  ^^  though,  if  the  warranty  is  contained 
in  a  written  contract,  the  construction  of  the  warranty  is  for  the 
court^°  Of  course,  the  question  whether  the  language  is  unmis- 
takable will  be  decided  differently  by  different  courts.  Thus 
in  a  case  where  two  pictures  were  sold  at  auction  by  a  catalogue, 
in  which  one  was  said  to  be  by  Claude  Lorraine,  and  the  other  by 
Teniers,  Lord  Kenyon  held  this  no  warranty  that  the  pictures  were 
genuine  works  of  those  masters,  but  merely  an  expression  of  opin- 
ion.*^ But  where  the  seller  sold,  by  a  bill  of  parcels,  "four  pictures, 
views  in  Venice,  Canaletti,"  it  was  left  to  the  jury  to  say  whether 
the  seller  meant  to  warrant  them  as  genuine  works  of  Canaletti,  and 
Lord  Denman  distinguished  the  case  from  the  preceding  one  by  the 
suggestion  that  Canaletti  was  a  comparatively  modern  painter  of 
whose  works  it  would  be  possible  to  make  proof  as  a  matter  of  fact, 

0  7  Pasley  v.  Freeman,  3  Term  R.  57,  per  Holt,  C.  J.;  Henshaw  v.  Robins, 
9  Mete.  (Mass.)  83,  88;  Randall  v.  Thornton,  43  Me.  226;  Chapman  v. 
Murch,  19  Johns.  290;  Zimmerman  v.  Morrow,  28  Minn.  367,  10  N.  W.  139; 
Torkelson  v.  Jorgenson,  28  Minn.  383,  10  N.  W.  416;  Mason  v.  Chappell, 
15  Grat.  573;  Warren  v.  Philadelphia  Coal  Co.,  83  Pa.  St.  437,  440;  Thome 
V.  McVeigh,  75  111.  81;  Grieb  v.  Cole,  60  Mich.  397.  27  N.  W.  579;  Watson 
V.  Roode,  30  Neb.  264,  46  N.  W.  491. 

68  Power  V.  Barham,  4  Adol.  &  E.  473;  Henshaw  v.  Robins,  9  Mete.  (Mass.) 
83,  88;  Warren  v.  Philadelphia  Coal  Co.,  83  Pa.  St.  437,  440;  Kenner  v. 
Harding,  85  111.  264;  Robinson  v.  Harvey,  82  111.  58;  Austin  v.  Nickerson, 
21  Wis.  542,  543;  Mason  v.  Chappell,  15  Grat.  572,  583;  James  v.  Bockage, 
45  Ark.  284. 

6  9  Stucley  V.  Baily,  1  Hurl.  &  C.  405,  417,  31  Law  J.  Exch.  483;  Power  v. 
Barham,  4  Adol.  &  E.  473;  Edwards  v.  Marcy,  2  Allen,  486,  490;  Tuttle  v. 
Brown,  4  Gray,  457;  Osgood  v.  Lewis,  2  Har.  &  G.  495;  Kingsley  v.  Johnson, 
49  Conn.  402;  Crenshaw  v.  Slye,  52  Md.  140;  Claghorn  v.  Lingo,  62  Ala. 
230;  Thorne  v.  McVeagh,  75  111.  81;  McDonald  Manuf'g  Co.  v.  Thomas,  53 
Iowa,  558,  5  N.  W.  737. 

«o  Osgood  V.  Lewis,  2  Har.  &  G.  495;   Rice  y.  Codman,  1  Allen,  377,  380. 

•  1  Jendwine  v.  Slade  (1797)  2  Esp.  572. 


164  CONDITIONS    AND    WARRANTIES.  [Ch.   7 

but  that  in  the  case  of  very  old  masters  the  assertion  was  neces- 
sarily matter  of  opinion,*'      It  would  be  beyond  the  scope  of  this 
book  to  consider  in  detail  particular  expressions  which  have  been 
held  to  be  warranties. 
Knoion  Defects. 

As  a  rule  a  general  warranty  is  held  not  to  extend  to  known 
defects  or  to  defects  apparent  on  a  simple  inspection.®^  This 
I'ule  rests  on  the  presumed  intention  of  the  parties,  who  cannot 
be  supposed  the  one  to  assert,  and  the  other  to  rely  on,  the  truth 
of  what  thej'  know  to  be  untrue.  But  the  warranty  may  be  so 
expressed  as  to  protect  the  buyer  against  the  consequences  of 
patent  defects,  and  an  intention  to  include  them  will  readily  be  in- 
ferred in  doubtful  cases,  where  the  buyer  may  naturally  prefer  to 
rely  on  the  warranty  rather  than  on  his  own  judgment.®* 
Future  Events. 

Blackstone  says  that  "the  warranty  can  only  reach  to  things 
in  being  at  the  time  the  warranty  was  made,  and  not  to  things  in 
future;  as  that  a  horse  is  sound  at  the  buying  of  him,  not  that  he 
will  be  sound  two  years  hence."  ®°  But  the  law  is  now  different, 
and  the  seller  may  undertake  to  indemnify  the  buyer  against  de- 
fects which  may  arise  in  the  future.®® 

6  2  Power  V.  Barham  (1836)  4  Adol.  &.  E.  473.  CanalettI  died  In  1768, 
Claude  Lorraine  in  1682,  and  Teniers  (the  younger)  in  1694. 

88  Marge tson  v.  Wright,  7  Bing.  603,  8  Bing.  454;  Schuyler  v.  Russ,  2 
Caines,  202;  Bennett  v.  Buchan,  76  N.  Y.  386;  Hill  v.  North,  34  Vt.  604; 
Leavitt  v.  Fletcher,  60  N.  H.  182;  McConuick  v.  Kelly,  28  Minn.  135,  9  N. 
W.  675.  The  rule  does  not  apply  if  the  seller  artificially  conceals  the  objects 
from  the  buyer.  Chadsey  v.  Greene,  24  Conn.  562;  Kenner  v.  Harding,  85 
111.  264. 

6  4  HUl  V.  North,  34  Vt.  604;  Brown  v.  Bigelow,  10  Allen,  242;  Sherwalter 
V.  Ford,  34  Miss.  417;  Marshall  v.  Drawhorn,  27  Ga.  275,  279;  McCormick 
V.  Kelly,  28  Minn.  135,  138,  9  N.  W.  675;    Branson  v.  Turner,  77  Mo.  489. 

86  3  Bl.  Comm.  166. 

««  Eden  v.  Parkison,  2  Doug.  735;   Osborn  v.  Nicholson,  13  Wall.  654. 


Ch.   7]  IMPLIED    WARRANTY    OF    TITLE.  16i 


IMPLIED  WARRANTY  OF  TITLE. 

94.  By  a  contract  of  sale,  the  seller  impliedly  -warrants 
his  right  to  sell  the  goods,  unless  the  circumstances  of  the 
sale  or  agreement  to  sell  are  such  as  to  sho^w  that  the 
seller  is  transferring  only  such  property  as  he  may  have 
in  the  goods. 

EXCEPTION — In  some  states  the  implied  warranty 
of  title  is  confined  to  cases  in  which  the  seller  is 
in  possession  of  the  goods. 

There  has  never  been  any  question  that  in  an  executoTy  con- 
tract of  sale  the  seller  warrants  by  implication  the  title  to  the 
goods  which  he  promises  to  sell;  or  that  in  the  sale  of  a  specific 
chattel  an  aflflrmation  by  the  seller  that  the  chattel  is  his  is  equiva- 
lent to  a  warranty  of  title;  or  that  such  an  affirmation,  with  the 
consequent  warranty,  may  be  implied  from  the  conduct  of  the  seller 
as  well  as  from  his  words,  and  may  also  result  from  the  nature  and 
circumstances  of  the  sale.'^^  But  it  was  formerly  held  that  there 
was  no  warranty  of  title  implied  in  the  mere  act  of  sale.®*  This 
view  was  strongly  supported  in  the  opinion  in  Morley  v.  Atten- 
borough  ®®  of  Parke,  B.,  who,  however,  recognized  so  many  ex- 
ceptions to  the  rule,  founded  upon  declarations  or  conduct  equiva- 
lent to  warranty,  that,  as  Lord  Campbell  said,^°  the  exceptions 
"well  might  eat  up  the  rule."  The  old  rule  was  substantially 
altered  in  18(54  by  Eichholz  v.  Bannister,''^  upon  the  strength  of 
the  opinion  of  the  judges  in  which  case,  Benjamin,  after  reviewing 
the  authorities,  argues  conclusively  that  the  exceptions  have  become 
the  rule,  and  that  the  old  rule  has  dwindled  into  the  exceptions. 
He  states  the  rule  as  follows:  "A  sale  of  personal  chattels  implies 
an  affirmation  by  the  vendor  that  the  chattel  is  his,  and  therefore 

OT  Morley  v.  Attenborough,  3  Exch.  500,  per  Farke,  B. 

88  Noy,  Max.  c.  42;    Co.  Litt.  102a. 

«»  3  Exch.  500. 

TO  Sims  V.  Marryat,  17  Q.  B.  281.  291,  20  Law  J.  Q.  B.  454. 

Ti  17  0.  B.  (N.  S.)  708,  34  Law  J.  C.  P.  105. 


166  CONDITIONS    AND    WARRANTIES.  [Cll.   7 

he  warrants  the  title,  unless  it  be  shown  by  the  facts  and  circum- 
stances of  the  sale  that  the  vendor  did  not  intend  to  assert  owner- 
shij),  but  only  to  transfer  such  interest  as  he  might  have  in  the 
chattel  sold."  ^» 
Rule  in  America. 

In  the  United  States  a  distinction  between  goods  in  possession 
of  the  seller  and  goods  not  in  possession  has  been  somewhat  upheld; 
and  the  rule  has  been  said  to  be  that  as  to  goods  in  possession 
there  is  an  implied  warranty,  but  that  when  the  goods  are  in  the 
possession  of  a  third  person  there  is  no  warranty.^^  That  there 
is  an  implied  warranty  of  title  when  the  seller  is  in  possession  of 
the  gtDods  is  universally  held/*  the  implication  resting  on  the 
theory  that  possession  is  equivalent  to  an  affirmation  of  title.^"* 
But,  though  the  other  branch  of  the  rule  has  been  frequently  ap- 
proved and  sometimes  applied/''  the  tendency  of  the  later  decisions 
is  against  the  recognition  of  such  a  distinction,  and  favorable  to 
the  modern  English  rule.^^  Thus,  in  a  Massachusetts  case,''*  Dewey, 
J.,  said:  "Possession  here  must  be  taken  in  its  broadest  sense, 
and  the  excepted  cases  must  be  substantially  cases  of  sales  of 

72  Benj.  Sales,  §  639.  This  rule  was  approved  and  followed  by  Stephen. 
J.,  in  Raphael  v.  Burt,  1  Cab.  &  El.  325. 

T3  2  Kent,  Comm.  478.  This  distinction  was  upheld  by  Lord  Holt  in 
Medina  v.  Stoughton,  1  Salk.  210,  Ld.  Raym.  593,  but  repudiated  by  Buller. 
J.,  in  Pasley  v.  Freeman,  3  Temi  R.  51,  and  by  the  judges  in  Morley  v. 
Attenboroush,  3  Exch.  500,  and  in  Eichholz  v.  Bannister,  17  C.  B.  (N.  S.)  708. 

7  4  Shattuck  V.  Green,  104  Mass.  42;  Maxfleld  v.  Jones,  76  Me.  135,  137; 
Starr  v.  Anderson,  19  Conn.  338;  Sargent  v.  Currier,  49  N.  H.  311;  Cohn 
V.  Ammidown,  120  N.  Y.  398,  24  N.  E.  944;  Gould  v.  Bourgeois,  51  N.  J. 
Law,  361,  18  Atl.  64;  Rice  v.  Forsyth,  41  Md.  389;  Williamson  v.  Sammons. 
34  Ala.  691;  Morris  v.  Thompson,  85  111.  16;  Marshall  v.  Duke,  51  Ind.  62; 
Huut  V.  Sackett,  31  Mich.  18;  Edgerton  v.  Micbels,  66  Wis.  124,  26  N.  W. 
748,  and  28  N.  W.  408;  Davis  v.  Smith,  7  Minn.  414  (Gil.  328);  Gross  v. 
Kier.ski,  41  Cal.  111. 

75  Shattuck  V.  Green,  104  Mass.  42,  per  Morton,  J. 

7  6  Huntington  v.  Hall,  36  Me.  501;  Scranton  v.  Clark,  39  N.  Y.  220;  Long 
V.  Hickingbottom,  28  Miss.  773. 

7  7  Gould  V.  Bourgeois,  51  N.  J.  Law,  361,  373,  18  Atl.  64,  per  Depue,  J.; 
1  Smith,  Lead.  Cas.  (Edson's  Ed.)  344.  The  cases  are  collected  In  Willist 
Cas.  Sales,  630. 

78  Whitney  v.  Heywood,  6  Gush.  82,  86. 


Ch.   7]  IMPLIED    WARRANTIES    OF    QUALITY.  167 

the  mere  naljed  interest  of  persons  having  no  possession,  actual  or 
constructive."  And,  in  a  later  case  ^^  in  the  same  court,  Morton, 
J.,  observed :  "If  the  vendor  has  either  actual  or  constructive  pos- 
session, and  sells  the  chattels,  and  not  merely  his  interest  in  them, 
such  sale  is  equivalent  to  an  afiBrmation  of  title," — a  distinction 
which,  as  Mr.  Corbin  observes,*"  differs  little  from  that  established 
in  Eichholz  v.  Bannister. 
No  Warranty  in  Official  Sales. 

Sales  by  a  judicial   officer,   sheriff,   executor  or  administrator, 
mortgagee,   or  auctioneer  fall   within   the  exception,    the   circum- 
stances in  such  sales  being  such  as  to  indicate  that  the  seller  sells 
only  such  interest  as  he  may  have  in  the  goods.*^ 
When  Action  for  Breach  Accrues. 

Whether  an  action  for  breach  of  warranty  of  title  will  lie  upon 
mere  proof  that  a  superior  title  or  an  incumbrance  exists,  or 
whether  proof  of  eviction  or  of  interference  with  possession  is 
necessary,  is  a  question  on  which  the  decisions  conflict.  Those 
which  maintain  the  first  alternative  adopt  the  analogy  of  covenants 
of  right  to  convey  or  against  incumbrances,*^  while  those  which 
maintain  the  other  alternative  adopt  the  analogy  of  covenants  for 
quiet  possession.*^ 

IMPLIED  WARRANTIES  OF  QUALITY. 

95.  Subject  to  the  exceptions  hereinafter  mentioned, 
there  is  at  common  la-w  no  implied  \nrarranty  of  the  qual- 
ity, fitness,  or  condition  of  goods  supplied  under  a  con- 
tract of  sale. 

78  Shattuck  V.  Green,  104  Mass.  42,  45.. 

80  Benj.  Sales  (Corbin's  Ed.)  §  962,  note  21. 

81  Chapman  v.  Speller,  14  Q.  B.  621,  19  Law  J.  Q.  B.  241;  The  Monte 
Allegre,  9  Wheat.  616;  Mockbee  v.  Gardner,  2  Har.  &  G.  176;  Baker  v. 
Arnot,  67  N.  Y.  448;  Corwin  v.  Behmam,  2  Ohio  St  36;  Bingham  v.  Maxcy, 
15  111.  295. 

8  2  Wanser  v.  Messier,  29  N.  J.  Law,  256;  Krumbhaar  v.  Birch,  83  Pa.  St 
426;  Linton  v.  Porter,  31  111.  107;  Gross  v.  Kierski,  41  Cal.  Ill;  Bmi:  v. 
Dewey,  40  N.  Y.  283. 

83  Perkins  v.  Whelan,  116  Mass.  542;  Chancellor  v.  Wiggins,  4  B.  Men. 
201;  Matheny  v.  Mason,  73  Mo.  677;   Word  v.  Gavin,  1  Head,  506. 


168  CONDITIONS    AMD   WARRANTIES.  [Ch.   7 

EXCEPTIONS— 

(a)  Where  goods  are  purchased  from  the  manufac- 

turer, a  w^arranty  is  (perhaps)  implied  that 
they  are  free  from  latent  defects  resulting  from 
the  process  of  manufacture. 

(b)  Where  the  buyer,  relying  on  the  seller's  skill  or 

judgment,  orders  goods  for  a  particular  pur- 
pose kno-wn  to  the  seller,  and  the  goods  are  of 
a  description  -which  it  is  in  the  course  of  the 
seller's  business  to  supply,  there  is  an  implied 
•warranty  that  the  goods  are  reasonably  fit  for 
such  purpose. 

(c)  Where  goods  are  ordered  by  description,  and  the 

buyer  has  no  opportunity  of  examining  them, 
there  is  an  implied  "warranty  that  the  goods 
are  merchantable. 

(d)  On  a  sale  of  provisions  for  domestic  consumption, 

it  is  held  in  some  states  that  there  is  an  implied 
■warranty  that  they  are  fit  for  food. 

(e)  In  the  case  of  a  contract  of  sale  by  sample,  there 

is  an  implied  Tvarranty  that  the  bulk  shall 
correspond  -with  the  sample  in  quality  and  con- 
dition. 

Caveat  Emptor. 

The  maxim  of  the  common  law,  "caveat  emptor,"  is  the  general 
rule,  so  far  as  quality  is  concerned,  applicable  to  sales.  The  buyer, 
in  the  absence  of  fraud,  purchases  at  his  own  risk,  unless  the  seller 
has  given  an  express  warranty,  or  unless  a  warranty  be  implied 
from  the  nature  and  circumstances  of  the  s;ile.^*  The  rule  of 
caveat  emptor  probably  had  its  origin  in  the  fact  that  in  early 
times  nearly  all  sales  of  goods  took  place  in  market  overt."*  The 
tendency  of  modem  cases  is  to  diminish  its  scope  by  implying  war- 

•*  Miller  V.  Tiffany,  1  Wall.  298;  Barnard  v.  Kellogg,  10  Wall  383;  Winsor 
T.  Lombard,  18  Pick.  57;  Ilargous  v.  Stone,  5  N.  Y.  73;  Moore  v.  McKinlay, 
6  Gal.  471.    See,  also,  cases  cited  post,  note  96. 

•  5  Morley  v.  Attenborough,  3  Exch.,  at  page  511,  per  Par  lie,  B. 


Ch.   7]  IMPLIED   WARRANTIES    OF    QUALITY.  169 

ranties  in  certain  cases,  where  the  circumstances  indicate  that  such 

was  the  intention  of  the  parties. 

]^lietJtcr   Warranty  may  be  Implied  from   Usage. 

Benjamin  sajs  that  an  implied  warranty  may  result  from  usage,** 
but  this  statement  is  somewhat  misleading.  He  cites  Jones  v. 
Bowden,*^  an  action  of  deceit,  in  which  it  appeared  that  in  auction 
sales  of  certain  drugs,  as  pimento,  it  was  usual  to  state  in  the 
broker's  catalogue  whether  they  were  sea  damaged;  and  upon  the 
evidence  of  the  usage,  and  of  the  absence  in  the  sale  in  question  of 
a  statement  that  they  were  sea  damaged,  it  was  held  that  the 
buyer  could  maintain  an  action  for  fraud.  As  the  writer  else- 
where observes,^*  the  grounds  are  not  very  intelligently  given,  but 
it  may  be  fairly  inferred  from  the  language  of  Mansfield,  C.  J.,  that 
he  considered  the  verdict  as  establishing  a  usage  which  imposed  on 
the  seller  the  duty  of  disclosing  the  defect;  thus  bringing  the  case 
within  the  principle  that  the  suppression  of  that  which  is  true,  and 
which  it  is  the  duty  of  the  seller  to  make  known,  constitutes  fraud. 

As  observed  by  Davis,  J.,  in  the  leading  case  of  Barnard  v.  Kel- 
logg,89  in  the  supreme  court  of  the  United  States,  the  proper  oflSce 
of  a  custom  or  usage  in  trade  is  to  ascertain  and  explain  the  mean- 
ing and  intention  of  the  parties  to  a  contract,  whether  written  or 
in  parol,  which  could  not  be  done  without  the  aid  of  this  extrinsic 
evidence;  but  it  does  not  go  beyond  this,  and  is  used  on  the  theory 
that  the  parties  knew  of  its  existence,  and  contracted  with  reference 
to  it.  But  evidence  of  a  usage  to  imply  a  warranty  where  none  is 
implied  by  the  common  law,^"  or  evidence  of  a  usage  against  a  war- 
ranty where  a  warranty  is  implied  by  law,®^  is  inadmissible.  Custom 
cannot  be  admitted  to  control  the  general  rules  of  the  law.     Thus 


««  Benj.  Sales,  §  655. 

«T4  Taunt.  847.    Cf.  Syers  v.  Jonas.  2  Exch.  Ill;   Chalm.  Sale,  §  17. 

«8  Benj.  Sales,  §  480. 

89  10  Wall.  383. 

60  Barnard  v.  Kellogg,  10  Wall.  383;  Dickinson  v.  Gay,  7  Allen,  29;  Dood 
T.  Farlow,  11  Allen,  426;  Snelling  v.  Hall,  107  Mass.  134.  See,  also,  Coxe 
V.  Heisley,  19  Pa.  St.  243;   Wetherill  v.  Neilson,  20  Pa,  St.  448. 

•  1  Whitmore  v.  South  Boston  Iron  Co.,  2  Allen,  52. 


170  CONDITIONS    AND    WARRANTIES.  [Cll.   7 

in  Barnard  v.  Kellogg,'*  where  the  buyer  purchased  in  Boston  cer- 
tain wool,  after  haviug  examined  four  bales  and  declined  to  examine 
the  rest,  and  it  turned  out  that  some  of  the  bales,  unknown  to  the 
seller,  were  falsely  packed,  it  was  held  that  the  seller  was  not 
bound  by  warranty  against  false  packing,  which  by  the  custom  of 
dealers  in  wool  in  New  York  and  Boston  was  imijlied  from  the  fact 
of  sale.  Davis,  J.,  said:  "The  usage  was  inconsistent  with  the 
contract  which  the  parties  chose  to  make  for  themselves,  and  con- 
trary to  the  wise  rule  of  law  governing  the  sale  of  personal  prop- 
erty." In  concluding,  he  remarked  that  it  was  proper  to  add  that 
the  parties  did  not  know  of  the  custom,  and  could  not,  therefore, 
have  dealt  with  reference  to  it.  Whether  the  result  would  have 
been  different  if  the  custom  had  been  known  to  the  parties  the 
opinion  does  not  intimate;  but  it  seems  that  something  more  than 
mere  knowledge  of  the  custom  would  be  necessary  to  show  that 
they  intended  to  make  it  a  term  of  the  contract. 

Sale  of  Specific  Chattel. 

So  far  as  concerns  the  sale  of  an  ascertained  chattel  which  the 
buyer  has  inspected  or  has  had  an  opportunity  of  inspecting,  and 
of  which  the  seller  is  not  the  manufacturer  or  grower,  the  rule 
caveat  emptor  admits  of  no  exceptions  by  implied  warranty  of 
quality.®^  Benjamin  states  the  rule  without  any  qualification  in 
respect  to  goods  of  which  the  seller  is  the  manufacturer,^*  but 
this  qualification  occurs  generally  in  the  statement  of  the  rule  in 
this  country,®''  and  it  has  sometimes  been  held  that  in  such  sales 
there  is  an  implied  warranty  that  the  goods  are  free  from  latent 

»2  10  Wall.  383. 

»3  Parkinson  v.  Lee,  2  East,  314;  Chanter  v.  Hopkins,  4  Mees.  &  W.  899; 
Barnard  v.  Kellogg,  10  WalL  383;  Salisbury  v.  Staiuer,  19  Wend.  159;  Hight 
V.  Bacon,  126  IMass.  10;  Weimer  v.  Clement,  37  Pa.  St.  147;  Sellers  v. 
Stevenson,  163  Pa.  St.  262,  29  Atl.  715;  Rice  v.  Forsyth,  41  Md.  389;  Barnett 
V.  Stanton,  2  Ala.  195;  Kohl  v.  Lindley,  39  111.  195.  The  rule  of  caveat 
emptor  is  probably  universal  in  the  United  States,  except  in  South  Carolina. 
Barnard  v.  Yates,  1  Nott  &  McC.  142. 

»*  BenJ.  Sales,  §  644. 

»B  Barnard  v.  Kellogg,  10  Wall.  383,  and  cases  cited  in  note  93. 


Ch.   7]  IMPLIED    WAIIUA.M'IES    OF    QUALITY.  171 

defects  resulting  from  the  process  of  manufacture.®'  In  the  nile  of 
caveat  emptor  there  is  no  hardship,  for,  if  the  buyer  mistrusts  his 
judgment,  he  can  require  of  the  seller  a  warranty.  If  he  inspects, 
or  declines  to  do  so,  and  is  satisfied  without  a  warranty,  he  takes 
upon  himself  the  risk  of  the  goods  being  unmerchantable,  or  other- 
wise failing  to  possess  the  qualities  which  he  desires. 

Sale  by  Desaiption. 

It  must  be  borne  in  mind,  however,  that  if  a  specific  chattel  is 
sold  by  description,  even  though  the  buyer  has  an  opportunity,  for 
examination,  the  rule  of  caveat  emptor  does  not  apply.  In  such 
case,  if  the  article  does  not  correspond  with  the  description,  the 
seller  fails  to  comply,  not  with  a  warranty  or  collateral  agreement,^ 
but  with  the  contract  itself,  by  breach  of  condition  precedent,®^ 
as  already  explained.^* 

Warranty  of  Fitness  for  Purpose. 

Where  a  buyer  orders  an  article,  to  be  applied  to  a  particular 
purpose  made  known  to  the  seller,  and  the  article  is  of  a  kind 
manufactured  by  the  seller  or  in  which  he  deals,  if  the  buyer  relies 

»6  Hoe  V.  Sanborn,  21  N.  Y.  552;  Beers  v.  Williams,  16  111.  69;  White 
V.  Miller,  71  N.  Y.  118  (latent  defects  in  seeds  arising  from  improper  cultiva- 
tion). Where  the  buyer  bought  a  bull  for  breeding  purposes  to  the  knowl- 
edge of  the  seller,  paying  full  price,  and  the  bull  proved  impotent,  no  war- 
ranty was  implied.    McQuaid  v.  Ross,  85  Wis.  492,  55  N.  W.  705. 

»T  Benj.  Sales,  §  645,  citing  Josling  v.  Kingsford,  13  G.  B.  (N.  S.)  447,  32 
Law  J.  C.  P.  94.  See,  also,  Lewis  v.  Rountree,  78  N.  C.  323.  It  would  seem, 
however,  that  where  the  sale  is  by  description,  but  the  buyer  inspects  and 
accepts  the  specific  article  sold,  the  undertaking  of  the  seller  arising  from 
the  description  is  an  express  warranty,  such  as  results  from  any  affirma- 
tion of  fact  intended  to  be  an  inducement  to  the  sale,  and  on  which  the 
buyer  relies.  It  would  then  be  a  question  for  the  jury  whether  the  descrip- 
tion was  Intended  by  the  parties  as  a  warranty.  Thus  where  the  buyer, 
after  examination,  bought  what  the  auctioneer  erroneously  stated  to  be  blue 
vitriol,  it  was  held  that  it  was  a  question  for  the  jury  whether  the  repre- 
sentation at  the  sale  amounted  to  a  warranty.  Hawkins  v.  Pemberton,  51 
N.  ¥.  198;  Wolcott  V.  Mount,  36  N.  J.  Law,  262.  See  Winsor  v.  Lombard, 
18  Pick.  57,  60;  Stedman  v.  Lane,  19  Pick.  547,  551;  Borrekins  v.  Bevan,. 
3  Rawle,  23;  Van  Wyck  v.  Allen,  69  N.  Y.  61. 

»8  Ante,  p.  155. 


172  CONDITIONS    AND    WARRANTIES.  [Ch.  7 

on  the  judgment  or  skill  of  the  seller,  an  implied  warranty  arises 
that  the  article  shall  be  fit  for  its  purpose.®*  The  rule  rests  upon 
the  ground  that  the  buyer  trusts  to  the  seller  to  supply  a  suitable 
article,  and  not  to  his  own  inspection  or  instructions  as  to  its  char- 
acter. Therefore,  if  the  buyer  orders  a  specific  article,  or  a  known, 
described,  and  defined  article,  although  he  informs  the  seller  that  he 
wants  it  for  a  particular  purpose,  there  is  no  implied  warranty.^'"' 
The  warranty  of  fitness  for  a  particular  purpose  has  been  held  to 
extend  even  to  latent  defects  undiscoverable  by  the  seller.^"^  Thus 
where  a  carriage  builder  supplied  a  can-iage  pole  which  broke  and 
injured  the  buyer's  horses,  it  was  held  immaterial  that  the  de- 
fect could  not  have  been  discovered  by  the  exercise  of  reasonable 
skill.i°2 

99  Jones  V.  Bright,  5  Blng.  533;  Jones  v.  Just.  L.  R.  3  Q.  B.  197,  203.  37 
Law  J.  Q.  B.  89;  Randall  v.  Newson,  2  Q.  B.  Div.  102;  Kellogg  Bridge  Co. 
V.  Hamilton.  110  U.  S.  108,  3  Sup.  Ct.  537;  Hoe  v.  Sanborn,  21  N.  Y.  552; 
Van  Wyck  v.  Allen,  69  N.  Y.  61;  Bixler  v.  Saylor,  68  Pa.  St.  149;  Harris 
V.  Waite,  51  Vt.  480;  Brenton  v.  Davis,  8  Blackf.  317;  Byers  v.  Chapin,  28 
Ohio  St.  300;  Gerst  v.  Jones,  32  Grat.  518;  Cunningham  v.  Hall,  1  Sprague, 
404,  Fed.  Cas.  No.  3,482;  Dawes  v.  Peebles,  6  Fed.  85G;  Merrill  v.  Nightin- 
gale, 39  Wis.  247;  Breen  v.  Moran,  51  Minn.  525,  53  N.  W.  755;  Omaha 
€oal.  Coke  &  Lime  Co.  v.  Fay,  37  Neb.  68,  55  N.  W.  211. 

100  Chanter  v.  Hopkins,  4  Mees.  &  W.  399;  Ollivant  v.  Bayley,  5  Q.  B. 
288;  Seitz  v.  Brewers'  Refrigerating  Co.,  141  U.  S.  510,  12  Sup.  Ct.  46; 
Ottawa  Bottle  &  Flint-Glass  Co.  v.  Gunther,  31  Fed.  209;  Dounce  v.  Dow, 
64  N.  Y.  411;  Deming  v.  Foster,  42  N.  H,  165;  Bixler  v.  Saylor,  68  Pa.  St. 
149;  Warren  Glass- Works  Co.  v.  Keystone  Coal  Co.,  65  Md.  547,  5  Atl.  253; 
Mason  v.  Chappell,  15  Grat.  572;  Thompson  v.  Libby,  35  Minn.  443,  29  N. 
W.  150;  McCray  Refrigerator  &  C.  S.  Co.  v.  Woods,  99  Mich.  269,  58  N.  W. 
320;  Milwaukee  Boiler  Co.  v.  Duncan,  87  Wis.  120,  58  N.  W.  232.  There 
is  no  implied  warranty  that  bricks  to  be  furnished  of  a  specified  grade,  and 
of  good  quality  equal  to  sample,  shall  be  fit  for  their  purpose,  though  the 
seller  have  notice  of  it.  Wisconsin  Red  Pressed-Brick  Co.  v.  Hood,  54  Minn. 
543,  56  N.  W.  105. 

101  Randall  v.  Newson,  2  Q.  B.  Div.  102;  Rodgers  v.  Niles,  11  Ohio  St.  48. 
•Contra,  Hoe  v.  Sanborn,  21  N.  Y.  552;   Bragg  v.  Morrill,  49  Vt  45. 

102  Randall  v.  Newson,  2  Q.  B.  Div.  102. 


Ch.   7]  IMPLIED    WARRANTIES    OF    QUALITY.  173 

Warranty  of  Merchantnhlenesa. 

In  a  sale  of  goods  by  description,  where  the  buyer  has  not  had  an 
opportunity  to  examine  them,  there  is,  in  addition  to  the  implied  con- 
dition or  warranty  that  the  goods  shall  answer  the  description,  an 
implied  warranty  that  they  shall  be  salable  or  merchantable.^"* 
Where  the  goods  are  to  be  shipped  to  the  buyer,  this  warranty  does 
not  extend  to  the  depreciation  which  results  necessarily  from  the 
transit^"* 
Warranty  in  Sale  of  Provisions. 

Blackstone  says  that  in  contracts  for  provisions  it  is  always  im- 
plied that  they  are  wholesome,  and  that  if  they  are  not  an  action 
on  the  case  lies  against  the  seller.^ •*"  But  in  England  it  is  now 
held  that  they  are  governed  by  the  same  rules  as  other  com- 
modities; that  is,  that,  in  the  sale  of  provisions  in  which  the 
buyer  has  an  opportunity  for  inspection,  no  warranty  is  implied;  ^"^ 
but  that,  if  the  buyer  trusts  to  the  seller's  judgment  to  select 
them,  there  is  an  implied  warranty  that  they  are  fit  for  their  pur- 
pose, viz.  human  food.^"^ 

In  the  United  States  it  has  been  held  in  some  cases  that  on 
a  sale  of  provisions  there  is  an  implied  warranty  that  they  are  fit 
for   consumption;^''^   but  the  rule  is  generally  confined  to   sales 

103  Jones  V.  Just,  L.  R.  3  Q.  B.  197,  37  Law  J.  Q.  B.  89;  Drummond  v. 
Van  Ingen,  12  App.  Cas.  284,  290;  Howard  v.  Hoey,  23  Wend.  350;  Murchie 
T.  Cornell,  155  Mass.  60,  29  N.  E.  207;  Warner  v.  Arctic  Ice  Co.,  74  Me.  475; 
Fitch  V.  Archibald,  29  N.  J.  Law,  160;  Hood  v.  Bloch,  29  W.  Va.  244,  11  S. 
E.  910;  Babcock  v.  Trice,  18  111.  420;  Merriam  v.  Field,  39  Wis.  578;  Mc- 
Clurg  V.  Kelley,  21  Iowa,  508;  English  v.  Spokane  Com.  Co.,  6  C.  C.  A. 
416,  57  Fed.  451. 

104  Bull  V.  Robison,  10  Exch.  342,  24  Law  J.  Exch.  165;  Leggat  v.  Sands' 
Ale  Brewing  Co.,  60  111.  158;  Mann  v.  Everston,  32  Ind.  355;  English  v. 
Spokane  Com.  Co.,  6  C.  C.  A.  416,  57  Fed.  451;   post,  p.  197. 

10  B  3  Bl.  Comm.  166. 

loe  Burnby  v.  Bollett,  16  Mees.  &  W.  644;  Emmerton  v.  Mathews,  7  Hurl. 
&  N.  586,  31  Law  J.  Exch.  139;    Smith  v.  Baker,  40  Law  T.  (N.  S.)  261. 

lOTBigge  V.  Parkinson.  7  Hurl.  &  N.  955,  31  Law  J.  Exch.  301;  Beer  v. 
Walker,  46  Law  J.  C,  P.  677,  25  Wkly.  Rep.  880. 

10  8  Van  Bracklin  v.  Fonda,  12  Johns.  468;  Divine  v.  McCormlck,  50  Barb. 
116;  Hoover  v.  Peters,  18  Mich.  51.  See,  also,  Sinclair  v.  Hathaway,  57  Mich. 
60,  23  N.  W.  459;  Copas  v.  Anglo-American  Provision  Co.,  73  Mich,  541,  41 
N.  W.  690. 


174  CONDITIONS    AND    WARRANTIES,  [CI).   7 

where  the  goods  are  bought  for  doniostic  use, — that  is,  it  does  not 
apply  where  they  are  sold  as  merchandise.^"* 
Warranty  in  Sale  by  S<imple. 

It  is  not  to  be  assumed  that  every  sale  where  ai  sample  is  shown 
is  a  sale  by  sample.  There  must  be  an  understanding,  express 
or  implied,  that  the  sale  is  by  sample.^^" 

Where,  however,  the  sale  is  by  sample,  a  warranty  is  Implied 
that  the  bulk  shall  correspond  in  quality  with  the  sample."^  The 
reason  for  the  implication  is  that  there  is  no  opportunity  for  a  per- 
sonal examination  of  the  bulk.^^*  If  the  sample  contains  latent 
defects  not  apparent  on  reasonable  examination,  a  further  warranty 
is  implied  that  the  goods  are  free  from  such  defects.^ ^*  Such,  at 
least,  is  the  rule  when  the  seller  is  the  manufacturer,  though  it  has 
been  held  otherwise  when  he  is  not  the  manufacturer.^^* 

108  Moses  V.  Mead,  1  Denio,  378,  5  Denio,  617;  Wiusor  v.  Lombard,  18 
Pick.  57,  62,  per  Shaw,  C.  J.;  Humphreys  v.  Comline,  8  Blackf.  516;  Ryder 
V.  Neitge,  21  Minn.  70.  See,  also,  Emerson  v.  Brigbam,  10  Mass.  197;  How- 
ard V.  Emerson,  110  Mass.  320.  But  see  Fairbank  Canning  Co.  v.  Metzger, 
118  N.  Y.  260,  267,  23  N.  E.  372.  If  a  farmer,  not  a  dealer,  kills  a  hog,  and 
sells  it,  knowing  that  the  purchaser  intends  to  eat  it,  there  is  no  implied 
warranty  that  the  hog  is  fit  for  food.  Giroux  v.  Stedman,  145  Mass.  438, 
14  N.  E.  538. 

110  Gardiner  v.  Gray,  4  Camp.  144;  Meyer  v.  Everth,  Id.  22;  Hargous  v. 
Stone.  5  N.  Y.  73;  Beirne  v.  Dord,  Id.  99;  Gunther  v.  At  well,  19  Md.  157; 
Day  V.  Raguet,  14  Minn.  273  (Gil.  203);    Barnard  v.  Kellogg,  10  Wall.  383. 

111  Parker  v.  Palmer,  4  Barn.  &  Aid.  387,  391;  Carter  v.  Crick,  4  Hurl. 
&  N.  412,  28  Law  J.  Exch.  238;  Schuchardt  v.  Allans,  1  Wall  359,  370; 
Bradford  v.  Manly,  13  Mass.  139;  Williams  v.  Spafford,  8  Pick.  250;  Gould 
V.  Stein,  149  Mass.  570,  22  N.  E.  47;  Boothby  v.  Plaisted,  51  N.  H.  430; 
Merriman  v.  Chapman,  32  Conn.  146;  Waring  v.  Mason,  18  Wend.  425; 
Gunther  v.  Atwell,  19  Md.  157;  Hanson  v.  Busse,  45  111.  496;  Hubbard  v. 
George,  49  111.  275;  Graff  v.  Foster,  67  Mo.  512;  Brieham  v.  Retelsdorf,  73 
Iowa,  712,  36  N.  W.  715.  It  seems  that  in  Pennsylvania  the  warranty  im- 
plied in  a  sale  by  sample,  unless  there  are  circumstances  to  indicate  that 
the  sample  is  to  be  taken  as  a  standard  of  quality,  is  only  a  guaranty  that 
the  bulk  shall  correspond  in  kind  and  be  merchantable.  Boyd  v.  Wilson, 
83  Pa.  St.  319.    See  Benj.  Sales  (Corbin's  Ed.)  §  969,  note  26. 

112  Barnard  v.  Kellogg,  10  Wall.  383,  per  Davis,  J. 

lis  Heilbutt  v.  Hieksou,  L.  R.  7  C.  P.  438,  456;  Drummond  v.  Van  Ingen, 
12  App.  Cas.  284. 

11*  Parkinson  v.  Lee,  2  East,  314  (doubted  by  Brett,  J.  A.,  in  Randall  v. 
Newson,  2  Q.  B.  Div.  102);   Dickinson  y.  Gay,  7  Allen,  29. 


€h.  7]  IMPLIED    WARRANTIES    OF    QUALITY.  175 

Warranty  that  Goods  are  of  Seller^s  Manufacture. 

Where  there  is  a  contract  for  the  sale  of  goods  by  a  manufac- 
turer, as  such,  it  seems  that  in  England  there  is,  in  the  absence 
of  any  trade  usage  to  the  contrary,  an  implied  warranty  that  the 
goods  are  of  the  seller's  own  manufacture.^^"  This  question  does 
not  appear  to  hare  been  raised  in  the  United  States. 
Implied  Warranty  of  Quality  Strictly  a  Condition. 

On  a  sale  by  sample,  if  the  goods  do  not  correspond  with  the 
sample,  the  buyer  may  return  them,  unless  he  has  accepted  them  or 
the  contract  relates  to  specific  goods  the  property  in  which  has 
passed,^^®  and  he  is  entitled  to  a  reasonable  opportunity  of  com- 
paring them  with  the  sample.  Benjamin  says  that  it  is  an  implied 
condition  that  the  buyer  shall  have  such  an  opportunity,  and  that 
a  breach  of  the  condition  justifies  him  in  repudiating  the  con- 
tract.^ ^^  Inasmuch  as  the  buyer  may  reject  them  if  they  do  not 
correspond  with  the  sample,  it  seems  logically  that  the  undertaking 
that  the  goods  shall  correspond  is  a  condition,  and  not  a  war- 
ranty, as  much  as  is  the  implied  understanding  that  the  goods 
shall  conform  to  the  description."^  Such  is  the  view  taken  by 
Blackburn,  J.,  who,  in  a  case  where  the  goods  were  guarantied 
*'about  equal  to  the  sample,"  says:  "Generally  speaking,  when 
the  contract  is  as  to  any  goods  such  a  clause  is  a  condition  going 
to  the  essence  of  the  contract,  but  where  the  contract  is  as  to 
specific  goods,  the  clause  is  only  collateral  to  the  contract"  "® 
Text  writers  and  the  cases  generally,  English  as  well  as  American, 
however,  generally  speak  of  the  term  that  "the  bulk  shall  agree 
with  the  sample"  as  a  warranty,  collateral  to  the  agreement.^^" 

The  same  observations  apply  to  the  other  so  called  implied  war- 
ranties of  quality,  fitness,  and  condition.      Logically  they  are  con- 

116  Johnson  v.  Raylton,  7  0-  B.  Div.  438,  per  Brett,  L.  J.,  Cotton,  L.  J.,  and 
Bramwell,  L.  J.,  dissenting.    Clialm.  Sale,  §  17. 

iiBHeilbutt  V.  Hicksou,  L.  R.  7  C.  P.  438;  Couston  v.  Chapman,  L.  R.  2 
Sc.  App.  250,  at  page  254;  Butler  v.  Northumberland,  50  N.  H.  33;  Boothby 
y.  Plaisted,  51  N.  H.  436,  438;   Magee  v.  Billingsley,  3  Ala.  679;  post,  p.  243. 

iiT  Benj.  Sales,  §  594. 

118  Chalm.  Sale,  24. 

110  Hey  worth  v.  Hutchinson,  L.  R.  2  Q.  B.  447,  451. 

i«o  Benj.  Sales,  §  648. 


176  CONDITIONS    AND    WARRANTIES.  [Ch.   7 

ditions,  though  generally  spoken  of  as  warranties.^ *^  The  courts 
in  different  juiisdiitions  differ  as  to  whether  such  a  condition  is 
waived  by  acceptance  of  the  goods,  a  question  which  will  be  con- 
sidered in  connection  with  the  subject  of  the  buyer's  remedies. 
But  all  cases  agree  that  the  buyer  may  reject  the  goods  in  the 
first  place,  if  on  reasonable  inspection  it  appears  that  they  do  not 
correspond  with  the  quality  wairanted.^^^ 
Whether  an  Express  Excludes  an  Implied  Warranty. 

Where  a  warranty  arises  by  implication  of  law,  it  may  of  course 
be  negatived  or  varied  by  express  agi'eement^^^  The  parties  may 
alter  at  will  the  obligations  which  the  law  implies  from  the  gen- 
eral nature  of  the  contract  And  it  is  frequently  said  that,  upon 
the  principle,  "expressum  facit  cessare  taciturn,"  an  express  war- 
ranty excludes  an  implied  one,  at  least  upon  the  same  subject.^** 
But  this  statement  is  somewhat  blind.  An  express  warranty  may 
exclude  an  implied  warranty  upon  the  same  subject,  but  it  will  not 
be  held  to  have  this  effect  if,  upon  a  construction  of  the  contract, 
such  does  not  appear  to  have  been  the  intention  of  the  parties.  In 
estimating  the  effect  of  an  express  stipulation,  it  must  be  borne  in 
mind  that  "the  doctrine  that  an  express  provision  excludes  im- 
plication does  not  affect  cases  in  which  the  express  provision  ap- 
pears, on  the  true  construction  of  the  contract,  to  have  been  super- 
added for  the  benefit  of  the  buyer."  ^^^  Thus  a  warranty  that  the 
goods  shall  pass  inspection  has  been  held  not  to  exclude  an  implied 
warranty  of  merchantableness.^^*'  And  on  a  sale  by  sample,  where 
the  goods  were  unmerchantable  by  reason  of  a  latent  defect  which 
also  existed  in  the  sample,  it  was  held  that  the  warranty  that  the 

121  Chalm.   Sale,  95. 

122  Post,  p.  242. 
128  Chalm.  Sale.  13. 

124  Dickson  v.  Zizinia,  10  C.  B.  fi02.  20  Law  J.  C.  P.  73:  Deming  v.  Foster, 
42  N.  H.  165,  175;  McGraw  v.  Fletcher,  35  Mich.  104;  Johnson  v.  Latimer, 
71  Ga.  470;  International  Pavement  Co.  v.  Smith,  Beggs  &  Rankin  Mach. 
Co.,  17  Mo.  App.  204. 

i2r.  Mody  v.  Gregson,  L.  R.  4  Exch.,  at  page  53,  per  WiUes,  J.  See  Mer- 
riam  v.  Field,  24  Wis.  640;  Boothby  v.  Scales,  27  Wis,  620;  Wilcox  T. 
Owens,  64  Ga.  601;    Austin  v.  Cox,  60  Ga.  521. 

120  Bigge  V.  Parkinson,  7  Hurl.  &  N.  955,  31  Law  J.  Exch.  301. 


Ch.  7]  IMPLIED    WARRANTIES    OF    QUALITY.  177 

goods  should  conform  to  the  sample  did  not  exclude  an  implied  war- 
ranty that  they  were  merchantable.^^'' 

127  Drummond  v.  Van  Ingen,  12  App.  Cas.  284;  Mody  v.  Gregson,  L.  R. 
4  Exch.  49.  See,  also,  Jones  v.  Padgett,  24  Q.  B.  Div.  650.  It  is  perhaps 
open  to  doubt  whether  these  cases  can  be  reconciled  with  De  Witt  v.  Berry, 
134  U.  S.  306,  10  Sup.  Ct.  .536.  The  contract  was  for  the  sale  of  varnish, 
and  provided:  "These  goods  to  be  exactly  the  same  quality  as  we  make" 
for  certain  third  persons,  "and  as  per  sample  bbls.  delivered";  and  continued; 
"Turpentine  copal  varnish  at  65  cents  per  gallon;  turpentine  japan  dryer 
at  55  cents  per  gallon."  It  was  held  that  the  latter  terms  were  but  stipula- 
tions as  to  price,  and  imported  no  warranty  that  the  goods  delivered  should 
be  known  to  the  trade  by  those  names  and  of  a  certain  standard  of  quality.  It 
is  to  be  observed  tliat  the  quality  of  the  goods  was  expressly  fixed  by  reference 
to  certain  other  goods,  and  this  express  warranty  might  well  be  construed 
as  excluding  any  implied  warranty  of  quality.  Lamar,  J.,  observes,  how- 
ever, "that  there  are  numerous  well-considered  cases  that  an  express  war- 
ranty of  quality  excludes  an  implied  warranty  that  the  articles  sold  are 
merchantable  or  fit  for  their  intended  use."  In  a  sale  of  brick  by  description 
merely,  which  is  known  In  the  market,  there  is  an  implied  warranty  that 
the  bricks  should  be  of  good  material,  and  made  according  to  the  descrip- 
tion, but  none  that  they  would  answer  the  pm-pose  for  which  they  were 
purchased.  Wisconsin  Red  Pressed-Brick  Co.  v.  Hurd  Refrigerator  Ca 
(Minn.)  62  N.  W.  550. 

SALES — 13 


178  PERFORMANCE  OF  CONTRACT.  [Ch.  8 

CHAPTER  vm. 

PERFORMANCE  OF  CONTRACT. 


06-97. 

In  GeneraL 

98. 

Meaning  of  "Delivery." 

99-100. 

Place  and  Time  of  Delivery. 

101-103. 

Delivery  of  Wrong  Quantity. 

104. 

Delivery   of   Installments. 

105. 

Delivery  to  Carrier. 

106. 

Duty  to  Insure  Safe  Arrival, 

107. 

Buyer's  Right  of  Examination. 

108. 

Acceptance. 

109-110. 

Payment. 

IN  GENERAL, 

96.  It  is  the  duty  of  the  seller  to  deliver  the  goods,  and 
of  the  buyer  to  accept  and  pay  for  them,  in  accordance 
"with  the  terms  of  the  contract  of  sale.* 

97.  PAYMENT  AND  DELIVERY  CONCURRENT  CON- 
DITIONS— Unless  other-wise  agreed,  delivery  of  the  goods 
and  payment  of  the  price  are  concurrent  conditions;  that 
is  to  say,  the  seller  must  be  ready  and  "willing  to  give  pos- 
session of  the  goods  to  the  buyer  in  exchange  for  the  price, 
and  the  buyer  must  be  ready  and  "willing  to  pay  the  price 
in  exchange  for  possession  of  the  goods.^ 

As  we  have  seen,  where  specific  goods  are  sold,  and  nothing  is 
said  as  to  the  time  of  payment,  the  presumption  is  that  the  sale  is 
for  cash,  and  not  on  credit.  The  property  passes,^  but  subject 
to  the  seller's  lien;  and  neither  is  the  seller  bound  to  deliver  pos- 
session of  the  goods,  nor  is  the  buyer  bound  to  pay  the  price,  except 

1  Chalm,  Sale,  §  30. 

2  Chalm.  Sale,  §  31;   Clark,  Cont.  664. 
«  Ante,  p.  83. 


Cb.   8]  MEANING    OF  "DELIVERY."  179 

upon  performance  by  the  other  party.*  In  executory  contracts  of 
sale,  where  the  parties  have  not  otherwise  agreed,  the  rule  as  to 
the  concurrent  duty  of  delivery  and  payment  is  the  same.  Neitlier 
party  can  enforce  the  contract  against  the  other  without  showing 
readiness  and  willingness  to  perform.*^  It  is  not  necessary,  in  or- 
der to  maintain  an  action  on  the  contract,  to  show  actual  tender; 
readiness  and  willingness  is  enough." 

While  the  presumption  is  in  favor  of  a  cash  sale,  and  hence  that 
delivery  and  payment  are  concurrent  conditions,  the  parties  may, 
of  course,  make  whatever  bargain  they  please;  and,  if  the  bargain 
is  that  the  sale  is  on  credit,  the  buyer  is  entitled  to  the  immediate 
delivery  of  the  goods;''  though,  as  we  shall  see,  if  he  fails  to  take 
the  goods,  and  aftei'wards  becomes  insolvent,  or  if  the  term  of 
credit  expires  before  he  exercises  his  right  to  take  the  goods,  the 
seller's  lien  revives.' 

MEANING  OF  "DELIVERY." 

98.  "Delivery"  means  voluntary  transfer  of  possession, 
actual  or  constructive,  from  the  seller  to  the  buyer. 

"Delivery,"  in  general,  may  be  defined  as  the  voluntary  transfer 
of  possession  from  one  person  to  another.^  Benjamin  points  out  ^° 
that  the  word  "delivery"  is  unfortunately  used  in  vei-y  different 

*  Bloxam  V.  Sanders,  4  Barn.  &  C.  941,  948,  per  Bayley,  J.;  Leonard  v. 
Davis,  1  Black,  476;  Tipton  v.  Feitner.  20  N.  Y,  423;  Allen  v.  Hartfleld,  76 
m.  358. 

5  Morton  v.  Lamb,  7  Term  R.  125;  Rawson  v.  Johnson,  1  East,  203;  Por- 
ter v.  Rose,  12  Johns.  209;  Cook  v.  Ferral,  13  Wend.  285;  Robison  v.  Tyson, 
46  Pa.  St.  286;  Hapgood  v.  Shaw,  105  Mass.  276;  Phelps  v.  Hubbard,  51 
Vt  489;  Hough  v.  Rawson,  17  111.  588;  Stoolfire  v.  Royse,  71  111.  223;  Posey 
V.  Scales,  55  Ind.  282;  Simmons  v.  Green,  35  Ohio  St.  104;  Sousely  v.  Burns, 
10  Bush,  87. 

«  Rawson  v.  Johnson,  1  East,  203;  Waterhouse  v.  Skinner,  2  Bos.  &  P. 
447;   Jackson  v.  Alia  way,  6  Man.  &  G.  942. 

T  Bloxam  v.  Sanders,  4  Barn.  &  C.  941,  948,  per  Bayley,  J.;  ante,  p.  84; 
post,  p.  207. 

8  Post,  p.  207. 

»  See  Chalm.  Sale,  91;  Pol.  Poss.  43,  46. 

10  Benj.  Sales,  §  074  et  seq. 


180  PERFORMANCE    OF    CONTRACT.  [Ch.   8 

senses:  (1)  In  the  sense  of  transfer  of  title  or  property;  (2)  in  the 
sense  of  delivery  of  possession,  as  the  correlative  of  the  "actual 
receipt"  required  by  the  statute  of  frauds;  (3)  in  the  sense  of 
delivery  of  possession  in  performance  of  the  contract;  and  (4)  in 
the  sense  of  delivery  of  possession  sufficient  to  destroy  the  seller's 
lien,  or  even  his  right  of  stoppage  in  transitu.  Much  confusion  is 
caused  by  the  varying  senses  in  which  this  term  is  employed. 
"But,"  as  Chalmers,  J.,  remarks,"  "it  would  perhaps  be  more  cor- 
rect to  say  that  a  deliveiy  which  is  effective  for  one  purpose  is 
ineffectual  for  other  purposes.  For  instance,  delivery  to  a  carrier 
generally  passes  the  property  to  the  buyer,  but  does  not  defeat 
the  right  of  stoppage  in  transitu,  while  delivery  by  the  carrier  to 
the  consignee  does  defeat  that  right."  As  we  have  seen,^^  mere 
delivery  does  not  of  itself  ever  effect  a  transfer  of  the  title  or 
property;  whether  the  property  passes  depends  solely  upon  the 
intention  of  the  parties.  Delivery  under  the  statute  of  frauds  has 
already  been  considered.^'  Delivery  as  affecting  the  seller's  lien  ^* 
and  the  right  of  stoppage  in  transitu  ^"^  will  be  considered  later. 
The  question  with  which  we  are  here  concerned  is  what  delivery 
is  effectual  in  perfonnance  of  the  contract,  so  as  to  enable  the  seller 
to  defend  an  action  for  nondelivery. 
Constructive  Delivery — By  Agreement. 

Delivery  by  agreement  or  attornment  has  already  been  discussed 
in  considering  what  delivery  is  necessary  to  constitute  "actual  re- 
ceipt" under  the  statute  of  frauds.^*  As  we  have  seen,  such  de- 
livery may  take  place  in  three  classes  of  cases:  (1)  Where  the 
seller  is  in  possession  of  the  goods,  and  after  the  sale  attorns  to 
the  buyer,  and  continues  to  hold  the  goods  as  his  bailee;  (2)  when 
the  buyer  is  in  possession  of  the  goods  as  bailee,  and  after  the  sale, 
with  the  seller's  assent,  continues  to  hold  on  his  own  account;  (3) 
where  a  third  person  is  in  possession  of  the  goods  as  bailee  of  the 
seller,  and  such  third  person,  with  the  consent  of  the  seller,  attorns 
to  the  buyer,  and  continues  to  hold  as  his  bailee.  To  these  classes 
may  perhaps  be  added  a  fourth;  that  is,  where  the  goods  are  not 
in  the  custody  of  any  person,  as  timber  lying  at  the  disposal  of 

»»  Chalm.  Sale,  91.  i»  Ante,  p.  HO  ot  seq.  is  Post,  p.  220  et  seq. 

i«  Ante,  p.  83.  »«  Post,  p.  210.  i«  Ante,  p.  60. 


Ch.   8]  MEANING    OF  "DELIVERY."  181 

the  seller  on  the  premises  of  a  person  from  whom  he  bought  It, 
or  at  a  public  wharf,  or  logs  floating  in  a  river.^'^  In  these  caseS; 
a  constructive  delivery  may  be  made  by  mere  agreement  of  the 
parties.  It  seems  that  whatever  will  constitute  such  a  delivery  as 
to  satisfy  the  statute  of  frauds  will  constitute  delivery  in  perform- 
ance of  the  contract 
Symbolical  Delivery. 

Loi*d  Ellenborough  said  in  Chaplin  v.  Rogers  *'  that  "where  goods 
are  ponderous,  and  incapable  of  being  handed  over  from  one  to  an- 
other, there  need  not  be  an  actual  delivery,  but  it  may  be  done  by 
what  is  tantamount,  such  as  the  deliveiy  of  a  key  of  a  warehouse 
in  which  the  goods  are  lodged,  or  by  the  delivery  of  other  indicia 
of  property."  Although  delivery  by  giving  a  key  of  the  place  where 
the  goods  are  stored  is  frequently  classed  as  symbolical  delivery,^® 
Sir  F.  Pollock  shows  that  the  key  is  not  the  symbol  of  the  goods, 
but  that  the  transaction  "consists  of  such  a  transfer  as  the  nature 
of  the  case  admits,  and  as  will  practically  suffice  for  causing  the 
new  possession  to  be  recognized  as  such."  ^°  But  the  bill  of  lading 
is  universally  recognized  as  the  symbol  of  the  goods,  and  the  trans- 
fer of  the  bill  of  lading  operates  as  a  symbolical  delivery  of  them.^* 
So,  also,  the  transfer  of  the  grand  bill  of  sale  of  a  vessel  at  sea 
constitutes  a  sufficient  delivery  of  the  vessel."  The  common  laAv 
draws  a  sharp  line  between  the  transfer  of  the  bill  of  lading  and 
othci"  documents,  such  as  dock  and  wharf  warrants,  and  warehouse 
receipts,  the  transfer  of  which  operates  only  as  a  token  of  author- 
ity to  take  possession,  and  not  as  a  transfer  of  possession.^^      It  is 

IT  Ante,  p.  G4.  See  Leonard  v.  Davis,  1  Black,  476;  Jewett  v.  Warren, 
12  Mass.  300;  Boynton  v.  Veazie,  24  Me.  286;  Hutchins  v.  Gilchrist,  23  Vt. 
82;    Kingsley  v.  White,  57  Vt  565. 

18  1  East,  192.  See,  also,  Ellis  v.  Hunt,  3  Term  R.  464,  per.  Lord  Kenyon; 
Packard  v.  Dunsmore,  11  Gush.  282. 

19  Vining  v.  Gilbreth,  39  Me.  496;    Barr  v.  Reitz,  53  Pa.  St.  256. 
ao  Pol.  Poss.  61. 

»i  Sanders  v.  Maclean,  11  Q.  B.  Div.  327,  341;  ante,  p.  105;  post,  p.  223. 

«»  Atkinson  v.  MalLiig,  2  Term  R.  462;  Crapo  v.  Kelly,  16  Wall.  610,  640. 
See  ante,  p.  131. 

2  3  Ante,  p.  03;  post,  p.  211.  Many  of  the  cases  which  discuss  the  question 
of  symbolical  delivery  turn  simply  upon  the  transfer  of  the  property  from 
Beller  to   buyer,— a    fact   which   must   always   be  carefully   borne   In    mind. 


182  PERFORMANCE    OF    CONTRACT.  [Ch.  8 

possible,  however,  that  the  transfer  of  such  a  document,  making 
the  goods  deliverable  to  order,  if  the  goods  represented  by  the  in- 
strument were  subject  to  no  liens  or  charges,  would  be  sufficient 
in  performance  of  the  contract,  on  the  ground  of  an  attornment  in 
advance.** 

PLACE  AND  TIME  OF  DELIVERY. 

99.  PLACE — Whether  it  is  for  the  buyer  to  take  posses- 
sion of  the  goods  or  for  the  seller  to  send  them  to  the  buyer 
is  a  question  depending  in  each  case  on  the  contract,  ex- 
press or  implied,  bet-ween  the  parties.  Apart  from  any 
such  contract,  express  or  implied,  the  place  of  delivery  is 
the  seller's  place  of  business,  if  he  have  one,  and,  if  not, 
his  residence;  provided  that,  if  the  contract  be  for  the  sale 
of  specific  goods,  -which  to  the  knowledge  of  the  parties 
-when  the  contract  is  made  are  in  some  other  place,  then 
that  place  is  the  place  of  delivery.^ 

100.  TIME — Where,  under  the  contract  of  sale,  the  seller 
is  bound  to  send  the  goods  to  the  buyer,  but  no  time  for 
sending  them  is  fixed,  the  seller  is  bound  to  send  them 
VTithin  a  reasonable  time.^ 

See  Leonard  v.  Davis,  1  Black,  476;  Bethel  Steam-Mill  Co.  v.  Brown,  57  Me.  1. 
Other  cases  turn  on  the  question  whether  there  was  such  a  retention  of 
possession  by  the  seller  as  to  render  the  sale  fraudulent  as  against  creditors, 
without  involving  the  question  of  delivery,  pure  and  simple.  Wilkes  v.  Fer- 
ris, 5  Johns.  335;  Barr  v.  Reitz,  53  Pa.  St.  256;  Benford  v,  Schell,  55  Pa. 
St.  393;  Adams  v.  Foley,  4  Iowa,  44;  Puckett  v.  Read,  31  Ark.  131.  This 
seems  to  be  the  explanation  of  Gibson  v.  Stevens,  8  How.  384,  in  which  the 
title  of  the  transferee  of  a  warehouse  receipt  (not  undertaking  to  deliver 
to  the  order  of  the  bailor)  was  sustained  as  against  an  attaching  creditor 
of  the  bailor,  although  the  court  says  that  the  transfer  "passed  the  title  and 
possession."  See  Hallgarten  v.  Oldham,  135  Mass.  1,  9,  per  Holmes,  J.,  com- 
menting on  this  case. 

2  4  Benj.  Sales,  §  697;    post,  pp.  183,  212. 

«B  See  Sale  of  Goods  Act,  56  &  57  Vict  c  71,  §  29.    Of.  Chalm.  Sale,  §  32. 

»«  Chalm.  Sale,  §  32. 


Ch.   8]  PLACE    AND    TIME    OF    DELIVERY.  183 

Seller  not  Bound  to  Send  Goods. 

In  the  absence  of  a  contrary  agreement,  the  seller  Is  not  bound 
to  send  or  carry  the  goods  to  the  buyer.  He  does  all  that  he  is 
bound  to  do  by  leaving  or  placing  the  goods  at  the  buyer's  dis- 
posal, so  that  he  may  remove  them  without  lawful  obstruction.^'' 
If  the  goods  are  on  the  premises  of  a  third  person,  the  seller  must 
obtain  the  license  of  such  person  for  the  buyer  to  come  and  remove 
the  goods,  and,  if  the  goods  are  in  the  custody  of  such  person  as 
bailee,  his  attornment  to  the  buyer,''*  but  such  license  or  attorn- 
ment may  be  given  in  advance.  Thus,  where  the  defendant  sold 
at  auction  a  rick  of  hay  on  the  premises  of  J.,  who  had  given  a 
license  to  remove  it,  and  the  license  was  read  at  the  auction,  and 
the  defendant  gave  the  buyer  a  note  to  J.,  requesting  him  to  permit 
the  buyer  to  remove  the  hay,  it  was  held  that,  although  permission 
was  refused,  the  delivery  was  complete.^* 
Place  of  Delivery. 

Where  the  contract  does  not  otherwise  provide,  the  place  of 
delivery  is  the  seller's  place  of  business,  or,  if  he  have  no  place  of 
business,  his  residence.^"  If  the  goods  are  to  be  grown  or  manu- 
factured, the  place  of  delivery  is  the  farm  or  factory.^ ^  "The 
store  of  the  merchant,  the  shop  of  the  mechanic,  and  the  farm  or 
granary  of  the  farmer,  at  which  the  articles  sold  are  deposited  or 
kept,  must  be  the  place  where  demand  and  delivery  are  to  be  made, 
when  the  contract  is  to  buy  upon  demand,  and  is  silent  as  to  the 
place."  *^  A  distinction  is  made,  however,  in  some  of  the  cases 
where,  though  the  place  is  not  fixed,  the  seller  is  bound  to  deliver 
on  or  before  a  certain  day,  and  it  is  held  that  under  such  a  contract 

27  Wood  V.  Tassell,  6  Q.  B.  234;  Smith  v.  Chance,  2  Barn.  &  Aid.  753; 
Middlesex  Co.  v.  Osgood,  4  Gray,  447;  Phelps  v.  Hubbard,  51  Vt.  489;  Smith 
V.  Oaiett,  50  111.  290;  Daliota  Stock  &  Grazing  Co.  v.  Price,  22  Neb.  96,  34 
N.  W.  97  (sale  of  ranch  and  cattle  on  range). 

«8  Smith  V.  Chance,  2  Barn.  &  Aid.  753. 

2  9  Salter  v.  Woollams,  2  Man.  &  G.  650.  See,  also,  Wood  v.  Manley,  11 
Adol.  &  E.  34. 

80  Sousely  v.  Burns,  10  Bush,  87;  Janney  v.  Sleeper,  30  Minn.  473,  16  N. 
W.  365;    Lobdell  v.  Hopkins,  5  Cow.  516;    Rice  v.  Churchill,  2  Denio,  145. 

31  Middlesex  Co.  v.  Osgood,  4  Gray,  447;  Goddard  v.  Binney,  115  Mass. 
450;  Hamilton  v.  Calhoun,  2  Watts,  139;  Bragg  v.  Beers.  71  Ala.  151. 

82  2  Kent,  Comm.  505. 


184  PERFORMANCE  OF  CONTRACT.  [Ch.  8 

the  seller  must  seek  the  buyer,  and  tender  the  goods,  or,  if  they 
are  cumbersome,  ask  him  within  a  reasonable  time  before  delivery 
to  appoint  a  placo.^'  These  cases  proceed  on  the  analogy  of  cer- 
tain cases  which  hold  that,  in  contracts  for  the  payment  of  a  debt 
in  goods,  if  the  goods  are  deliverable  on  demand  the  creditor  must 
be  the  actor,  but  that  if  they  are  deliverable  at  or  within  a  certain 
time  the  debtor  must  be  the  actor;  but  it  seems  that  even  where 
the  time,  and  not  the  place,  is  fixed,  the  better  rule  is  that  passive 
readiness  to  allow  the  buyer  to  take  the  goods  is  all  that  is  required 
of  the  seller.'* 

If  the  contract  is  for  the  sale  of  specific  goods,  the  place  of  de- 
livery, in  the  absence  of  express  agreement,  is  fixed  by  the  situation 
of  the  goods  at  the  time  of  the  contract,  at  least  if  the  situation  is 
known  to  the  parties.' ° 

The  seller  may  be  bound,  however,  either  expressly  or  by  implica- 
tion, to  notify  the  buyer  of  the  place  of  delivery  or  of  the  readiness 
of  the  goods,  in  which  case  the  buyer  is  not  in  default  until  after 
he  has  received  notice.  Thus,  in  a  contract  for  the  sale  of  goods 
"ex  quay  or  warehouse,"  there  is  an  implied  condition  that  the 
seller  shall  give  notice  of  the  place  of  storage.'' 

On  the  other  hand,  the  buyer  may  be  bound  to  notify  the  seller 
of  the  place  of  delivery  before  the  seller  can  be  called  on  to  deliver. 
Thus,  if  the  agreement  is  to  deliver  on  board  the  buyer's  ship,  the 
buyer  must  name  the  ship,  and  give  notice  of  his  readiness  to  re- 
ceive the  goods,  before  he  can  complain  of  the  nondelivery.*''     So, 

8  8  Barr  v.  Myers,  3  Watts  &  S.  295;  Allen  v.  Woods,  24  Pa.  SL  76.  Of. 
Hapj^ood  V.  Shaw,  105  Mass.  276. 

84  2  Kent,  Comm.  506;   Benj.  Sales,  §  682. 

8B  Gray  v.  Walton,  107  N.  Y.  254,  14  N.  E.  191;  Smith  v.  Gillett,  50  111. 
290.  The  qualification  as  to  the  knowledge  of  the  parties  is  found  in  the 
English  sale  of  goods  act.  It  would  seem,  however,  that,  on  general  prin- 
ciples, if  the  goods  were  at  a  place  other  than  the  seller's  residence  or 
place  of  business,  the  parties  would  not  be  presumed  to  contract  with  ref- 
erence to  such  place,  unless  it  appeared  that  the  situation  of  the  goods  was 
known  to  them.  Deliveiy  to  a  carrier  at  the  place  where  the  goods  are 
at  the  time  of  sale  is  delivery  under  a  contract  silent  as  to  the  place  of 
delivery.    Perlman  v.  Sartorius,  162  Pa.  St.  320,  29  Atl.  852. 

«e  Davies  y.  McLean,  21  Wkly.  Rep.  264,  28  Law  T.  (N.  S.)  113. 

•  7  Armitage  v.  Insole,  14  Q.  B.  728;  Walton  v.  Black,  5  Houst.  149.  But, 
If  the  time  or  place  is  at  the  seller's  option,  he  must  give  notice  thereof 


Ch.   8]  PLACE    AND    TIME    OF    DELIVERY.  185 

where  the  buyer  is  to  provide  cars,  he  must  notify  the  seller,  be- 
fore the  latter  can  be  put  in  default.^ ^  Where  the  buyer  is  bound 
to  designate  the  place,  but  fails  to  do  so,  it  is  enough  to  consti- 
tute performance  by  the  seller  if  he  has  the  goods  ready  at  the 
time  fixed  by  the  contract.^® 
Time  of  Delivery — Reasonable  Time. 

Where  the  seller  is  bound  to  send  the  goods,  but  the  contract 
is  silent  as  to  the  time,  he  is  allowed  a  reasonable  time.  If  he 
delays  unreasonably,  the  buyer  is  relieved  of  his  obligation  to  re- 
ceive delivery.*"  What  is  a  reasonable  time  is  a  question  of  fact 
in  view  of  all  the  circumstances  attending  the  sale.*^  If  the  con- 
tract is  in  writing,  parol  evidence  of  the  facts  and  circumstances 
attending  the  sale  is  admissible  in  order  to  determine  what  is 
reasonable   time.*^      Where  the  contract  expresses   the  time,   the 

before  the  buyer  is  under  any  obligation  to  name  tJie  sliip.  Dwight  v.  Eck- 
ert,  117  Pa.  St.  490,  12  Atl.  32. 

38Kunkle  v.  Mitchell,  56  Pa.  St.  100;  Hocking  v.  Hamilton,  158  Pa.  St. 
107,  115,  27  Atl.  83G;  Bolton  v.  Riddle,  35  Mich.  13.  But  see  Council  Bluffs 
Iron  Works  v.  Cuppey,  41  Iowa,  104,  where  the  seller  was  to  deliver  rail- 
road ties  on  cars  to  be  furnished  by  the  buyer,  and  it  was  held  that  the 
seller  must  haul  the  ties  to  the  station,  and,  if  no  cars  were  ready  to  receive 
them,  deposit  them  near  the  track,  the  usual  place  of  receiving  such  prop- 
erty, before  he  could  show  performance.  On  the  other  hand,  in  Smith  v. 
Wheeler,  7  Or.  49,  it  was  held  that  the  seller,  not  having  been  notified,  need 
not  haul  machinery  to  the  station,  as  he  would  not  be  justified  in  leaving 
It  by  the  wayside. 

89  Lucas  V.  Nichols,  5  Gray,  311;  Hunter  v.  Wetsell,  84  N.  Y.  549;  Lock- 
hart  v.  Bonsall,  77  Pa.  St.  53;  Boyd  v.  Gunnison,  14  W.  Va.  1.  Where  the 
seller  was  to  deliver  a  ship  at  Portland,  and  the  buyer  after  notice  failed 
to  designate  a  wharf  or  other  place,  tender  of  delivery  at  a  safe  and  usual 
anchorage  in  the  harbor  was  sufficient.  Lincoln  v.  Gallagher,  79  Me.  189, 
8  AU.  883. 

*o  Ellis  V.  Thompson,  3  Mees.  &  W.  445;  Blydenburgh  v.  Welsh,  Baldw. 
331,  Fed.  Gas.  No.  1,583;  Pope  v.  Terre  Haute  Car  &  Manuf'g  Co.,  107  N. 
Y.  61,  13  N.  E.  592;  Boyd  v.  Gunnison,  14  W.  Va.  1;  Grant  v.  Merchants' 
&  Manufacturers'  Bank,  35  Mich.  515;   Tufts  v.  McClure,  40  Iowa,  317. 

<i  Ellis  V.  Thompson,  3  Mees.  &  W.  445;  Pinney  v.  First  Division  St.  P. 
&  P.  R.  Co.,  19  Minn.  251  (Gil.  211);  Stange  v.  Wilson,  17  Mich.  342;  Coon 
V.  Spaulding,  47  Mich.  102,  10  N.  W.  183.  Contra,  Echols  v.  New  Orleans, 
J.  &  G.  N.  R.  Co.,  52  Miss.  610. 

4  2  Ellis  V.  Thompson,  3  Mees.  &  W.  445.  But  where  the  contract  is  in 
writing,  and  does  uot  state  the  lime,  evidence  of  a  coutemporaneous  parol 


1S6  PERFORMANCE    OF    CONTRACT.  [Cll.   8 

question  is  one  of  construction,  and  therefore  for  llie  court.  When 
the  seller  is  to  deliver  at  a  designated  place,  but  the  time  is  not 
fixed,  the  seller  must  notify  the  buyer  of  his  readiness  to  deliver;  ** 
but,  if  the  buyer  is  to  designate  the  time,  the  seller  cannot  be  put 
in  default  until  it  has  been  designated.** 

Where  the  seller  is  not  bound  to  send  the  goods,  it  would  seem 
that  the  buyer  has  a  reasonable  time  to  come  and  fetch  them.*'' 
But  when  the  delivery  is  to  be  on  demand,  or  as  required,  the 
buyer  is  not  in  default  until  after  the  seller  has  called  on  him  to 
accept  delivery.**  If  the  goods  are  to  be  manufactured,  it  seems 
that  before  the  buyer  can  be  put  in  default  the  seller  must  notify 
him  that  the  goods  are  ready. *^ 

When  Time  is  Fixed. 

Although  at  common  law  "month"  generally  means  "lunar  month," 
in  mercantile  contracts  it  is  construed  as  meaning  "calendar 
month."  *^  When  a  certain  number  of  days  is  allowed  for  delivery, 
they  are  counted  as  consecutive  days,  and  include  Sundays,*® 
though  if  the  last  day  falls  on  Sunday  it  is  not  generally  counted.^* 
The  day  of  the  contract  is  not  included  in  counting  the  number 
of  days."*^ 

When  the  time  and  place  are  fixed,  a  delivery  at  such  time  and 

agreement  fixing  the  time  Is  inadmissible.  Coon  v.  Spaulding,  47  Mich.  162, 
10  N.  W.  183. 

*8  Cullum  V.  Wagstaff,  48  Pa.  St.  300. 

**  Posey  V.  Scales,  55  Ind.  282. 

*5  Mo  wry  v.  Kirk,  19  Ohio  St.  375. 

<8  Jones  V.  Gibbons,  8  Exch.  920;   Cameron  v.  Wells,  30  Vt.  633. 

*T  Where  the  seller  was  to  build  a  vessel,  and  deliver  it  at  one  of  several 
places  to  be  designated  by  the  buyer,  it  was  the  seller's  duty  to  give  notice 
when  it  was  finished,  so  that  the  buyer  might  designate  the  place.  Spooner 
v.  Baxter,  16  Pick.  409. 

*«  Webb  V.  Fairmaner,  3  Mees.  &  W.  473;  Churchill  v.  Merchants'  Bank. 
19  Pick.  532;  Thomas  v.  Shoemaker,  6  Watts  &  S.  179.  This  is  sometimes 
regulated  by  statute. 

<»  Brown  v.  Johnson,  10  Mees.  «&  W.  831.  See,  also,  cases  cited  in  note  50. 

00  Salter  v.  Burt,  20  Wend.  205;  Sands  v.  Lyon,  18  Conn.  18;  Barrett  t. 
Allen,  10  Ohio,  42G. 

61  Webb  v.  Fairmaner,  3  Mees.  &  W.  473;  Bemis  v.  Leonard,  118  Mass. 
502;    Weeks  v.  Hull,  19  Conn.  376. 


Ch.   8]  DELIVERY    OF    WRONG    QUANTITY.  187 

place  is  good  though  the  buyer  be  absent/*  A  tender  of  delivery 
on  the  last  day  at  the  place  designated  is  good,  even  in  the  absence 
of  the  buyer,  provided  it  be  made  within  such  time  before  sunset 
that  the  delivery  can  be  completed  by  daylight."*  A  tender  at  a 
later  hour  is  good  if  the  buyer  be  found  at  the  designated  place, 
or  in  cases  where  delivery  may  be  made  to  the  buyer  wherever  he 
happens  to  be,  provided  the  delivery  can  be  completed  before  mid- 
night; ^*  though  even  in  the  latter  case,  if  daylight  is  necessary 
to  enable  the  buyer  to  make  a  proper  inspection,  it  seems  that  the 
delivery  must  be  made  in  time  to  enable  him  to  make  such  exam- 
ination by  daylight.^* 


DELIVERY  OF  WRONG  QUANTITY. 

101.  "Where  the  seller  delivers  to  the  buyer  a  quantity 
of  goods  larger  than  he  contracted  to  sell,  the  buyer  may 
accept  the  goods  included  in  the  contract,  and  reject  the 
rest,  or  [if  he  cannot  sever  the  goods  included  in  the  con- 
tract from  the  other  goods  -without  incurring  trouble  or 
expense]  he  may  reject  the  v^hole.  If  he  accepts  the  vsrhole, 
he  must  pay  for  them  at  the  contract  rate.**^ 

103.  Where  the  seller  delivers  to  the  buyer  the  goods  he 
contracted  to  sell  mixed  with  goods  of  a  different  descrip- 
tion not  included  in  the  contract,  the  buyer  may  accept 
the  goods  -which  are  in  accordance  "with  the  contract,  and 
reject  the  rest,  or,  if  he  cannot  sever  the  goods  included 
in  the  contract  from  the  other  goods  v^ithout  incurring 
trouble  and  expense,  he  may  reject  the  -whole. 

103.  Where  the  seller  delivers  to  the  buyer  a  quantity 
of  goods  less  than  he  contracted  to  sell,  the  buyer  may 
reject  them;  but,  if  the  buyer  accepts  them,  it  is  erenerally 

»2  Barton  v.  McKelway,  22  N.  J.  Law,  165;  Case  v.  Green,  5  Watts,  262. 

8  8  Startup  V.  Macdonald,  6  Man.  &  G.  593,  624,  per  Parke,  B. 

e*  Startup  v.  Macdonald,  6  Man.  &  G.  593;   Beriy  v.  Nail,  54  Ala.  446, 
B8  Croninger  v.  Crocker,  G2  N.  Y.  151,  158. 

09  Chalm.  Sale,  §  33.  The  qualification  introduced  by  the  words  included 
in  brackets  applies  only  in  certain  jurisdictions.    See  post,  p.  188. 


188  PERFORMANCE    OF    CONTRACT.  [Cll.   8 

held  that  he  must  pay  for  them  at  the  contract  price, 
though  som.e  courts  hold  that  he  need  not  pay  for  them 
unless  he  has  other-wise  "waived  his  right  to  a  performance 
of  the  "whole  contract.'^ 

Delivery  of  Too  Much. 

The  seller  does  not  comply  with  his  contract  by  a  tender  or  de- 
livery of  a  greater  quantity  than  the  contract  requires.  Thus  it 
was  held  that,  where  the  contract  called  for  200  bales,  an  allevia- 
tion that  the  seller  shipped  206  bales  and  that  +he  buyer  refused 
to  receive  the  same  or  any  part  thereof  was  bad,  for  want  of  an 
allc<jation  that  the  seller  was  ready  to  deliver  200  only."*  And 
where  the  order  was  for  2  dozen  wine,  and  4  dozen  were  sent,  it 
was  held  that  the  buyer  might  return  the  whole. "^^  So  where  the 
order  was  for  10  hogsheads  of  claret,  and  the  seller  sent  15,  it 
was  held  that  the  contract  was  not  performed;  the  court  saying  that 
the  buyer  cannot  tell  which  are  the  10  that  are  to  be  his,  and  that 
it  is  no  answer  to  the  objection  to  say  that  he  may  choose  which 
10  he  likes,  for  that  would  be  to  force  a  new  contract  upon  him,'" 

In  this  country,  while  the  buyer  is,  as  a  general  rule,  entitled  to 
refuse  the  whole,  if  the  quantity  tendered  exceeds  the  quantity 
specified,®^  some  cases  hold  that,  if  no  additional  trouble  or  ex- 
pense is  cast  upon  the  buyer  by  the  selection  or  separation,  the  de- 
livery of  a  greater  amount,  with  the  request  to  select  or  separate 
the  amount  required,  is  suflQcient.'^      Thus  where  the  contract  was 

»T  Chalm.  Sale,  §  33.    Cf.  Sale  of  Goods  Act,  $  30. 

68  Dixon  V.  Fletcher,  3  Mees.  &  W.  140. 

8  9  Hart  V.  Mills,  15  Mees.  &  W.  85. 

•  0  Cunliffe  v.  Harrison,  6  Exch.  903. 

61  Rommel  v.  Wingate,  103  Mass.  327;  Stevenson  v.  Burgln,  49  Pa.  St 
36;  Norrington  v.  "Wright,  115  U.  S.  188,  204,  6  Sup.  Ct  12,  per  Gray,  J.; 
Perry  v.  ML  Hope  Iron  Co.,  16  R.  I.  318,  15  Atl.  87;  Clark  v.  Baker,  11 
Mete.  (Mass.)  186;  Croninger  v.  Crocker,  62  N.  Y.  151;  Hoffman  v.  King, 
58  Wis.  314,  17  N.  W.  136  (lumber  must  be  so  assorted  and  separated  from 
lumber  of  other  dimensions  or  of  inferior  quality  as  to  be  capable  of  identi- 
fication). 

«2  Lockhart  v.  Bonsall,  77  Pa.  St.  53;  Brownfield  v.  Johnson,  128  Pa.  St. 
1254,  268,  18  Atl.  543;  Iron  ClifCs  Co.  v.  Buhl,  42  Mich.  86,  3  N.  "W.  269 
(deposit  of  greater   amount  of  ore  from   which  buyer  could  take  contract 


Ch.   8]  DELIVERY    OF    WRONG    QUANTITY.  189 

for  5,000  barrels  of  oil  to  be  delivered  in  cars  in  bulk,  but  It  was  not 
the  seller's  duty  to  pump  the  oil  from  the  cars,  it  was  held  that  a 
tender  of  5,891  barrels  in  bulk  from  which  the  buyer  could  take  the 
required  amount  was  good.®' 

If  a  greater  amount  is  sent  in  performance  of  the  contract,  and 
not  for  the  purpose  of  charging  the  buyer  with  the  excess,  the 
delivery  may  be  good.**  But  if  a  greater  amount  is  tendered  for 
the  purpose  of  charging  the  buyer  with  the  excess,  and  he  accepts 
the  whole,  he  must  pay  for  the  excess  at  the  contract  price,  such 
a  delivery  operating  as  a  proposal  for  a  new  contract.®" 
Delivery  of  Goods  Mixed  with  Other  Goods. 

If  the  goods  ordered  are  sent  mixed  with  other  goods,  the  same 
principles  govern.  Where  Ruabon  coals  were  ordered,  and  a  cer- 
tain quantity  of  Ruabon  coals  were  shot  into  a  heap  with  coals  of 
a  different  sort,  the  delivery  was  held  bad.®®  And  where  crockery 
was  sent  packed  in  a  crate  with  other  crockery,  although  the  crock- 
ery ordered  was  perfectly  distinguishable,  the  same  rule  was  ap- 
plied, upon  the  ground  that  the  seller  had  no  right  to  impose  on 
the  buyer  the  onus  of  unpacking  and  separating.®^  The  rule  ap- 
plies where  damaged  goods  or  goods  of  an  inferior  quality  are  mixed 
with  the  bulk.®« 
Delivery  of  Too  Little. 

It  is  universally  conceded  that  the  buyer  need  not  accept  less 
than  the  entire  quantity  of  the  goods  contracted  for,  and  that  if 
the  seller  delivers  a  smaller  quantity  the  buyer  piay  reject  them.®® 

quantity);  Ganson  v.  Madigan,  9  Wis.  146,  13  Wis.  67.  See,  also,  Croninger 
V.  Crocker,  62  N.  Y.  151. 

«s  Loclihart  v.  Bonsall,  77  Pa.  St.  53. 

64  Downer  v.  Thompson,  6  Hill,  208. 

6  6  Cunliffe  v.  Harrison,  6  Exch.  903,  906,  per  Parke,  B. 

66  Nicholson  v.  Bradfield  Union,  L.  It.  1  Q.  B.  620,  35  Law  J.  Q.  B.  176. 

6T  Levy  V.  Green,  8  El.  &  Bl.  575,  27  Law  J.  Q.  B.  Ill,  28  Law  J.  Q.  B. 
819. 

6  8  Clark  V.  Baker,  11  Mete.  (Mass.)  186;  Hoffman  v.  King,  58  Wis.  314, 
17  N.  W.  136.    See,  also.  Walker  v.  Davis,  65  N.  H.  170,  172,  18  Atl.  196. 

69  Cleveland  Rolling-Mill  v.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882;  Salmon 
V.  Boykin,  66  Md.  541,  7  Atl.  701;  Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Lent, 
63  IlL  288;  Smith  v.  Lewis,  40  Ind.  98;  HiU  v.  Heller,  27  Hun,  416.  See, 
also,  cases  cited  in  note  70. 


190  PERFORMANCE    OF    CONTRACT.  [Ch.   8 

But  it  is  held  in  most  jurisdictions  that,  if  the  buyer  accepts  a 
partial  deliver}-,  he  must  pay  for  the  goods  accepted  at  the  contract 
rate,  although  the  seller  fails  to  deliver  the  rest  of  the  goods.'"* 
The  seller  may  not  sue  for  the  price  of  the  portion  of  the  goods 
delivered  before  the  time  fixed  for  the  delivery  of  the  rest,^^  but 
after  the  expiration  of  such  time  he  may  sue.^'  The  buyer  may, 
however,  reduce  the  amount  of  the  seller's  recovery  by  way  of  re- 
coupment, by  showing  that  he  has  sustained  damages  by  the  seller's 
failure  fully  to  perform  the  contract J^ 

Some  courts,  however,  deny  the  seller's  right  to  recover  for  a 
partial  delivery.  This  was  held  in  an  early  case  ''*  in  New  York, 
in  w'hich  the  contract  was  for  100  tons  of  hay,  to  be  delivered  be- 
tween certain  dates,  and  to  be  paid  for  at  a  certain  price  per  ton, 
part  in  advance,  and  the  residue  when  the  whole  should  be  deliv- 
ered. The  seller  delivered  only  52  tons,  and  after  the  expiration 
of  the  time  fixed  for  the  delivery  of  the  whole  brought  action  to 
recover  for  the  quantity  delivered  at  the  stipulated  price,  but  it  was 
held  that  there  could  be  no  recovery,  the  buyer  not  having  waived 
or  prevented  a  full  performance.  This  case  has  been  followed  in 
New  York  and  in  some  other  jurisdictions.^'^  A  limitation  of  the 
doctrine  enunciated  in  that  case  has,  however,  been  introduced 
in  a  later  New  York  case,^®  in  which  the  contract  was  for  the  de- 
livery of  699  boxes  of  glass  at  one  time,  and  the  buyer  accepted 
the  delivery  of  a  part,  without  knowledge  that  the  rest  was  not  to 

TO  Shipton  V.  Casson,  5  Barn.  &  C.  378,  382,  per  Lord  Tenterden;  Oxen- 
dale  V.  Wetherell,  4  Man.  &  R.  429;  Morgan  v.  Gath,  3  HurL  &  C.  748,  34 
Law  J.  Exch.  105 ;  Bowker  v.  Hoyt,  18  Pick.  555;  Hedden  v.  Roberts,  134 
Mass.  40;  Roberts  v.  Beatty,  2  Pen.  &  W.  63;  Clark  v.  Moore,  3  Mich.  55; 
Booth  V.  Tyson,  15  Vt  515;  Richards  v.  Shaw,  67  111.  222;  Polhemus  v. 
Heiman,  45  Cal.  573. 

71  Waddington  v.  Oliver,  2  Bos.  &  P.  (N.  R.)  61. 

72  Oxendale  v.  Wetherell,  4  Man.  &  R.  429;  CJolonial  Ins.  Co.  v.  Adelaide 
M.  Ins.  Co.,  12  App.  Cas.  128,  at  page  138. 

T8  Bowker  v.  Hoyt,  18  Pick.  555;    Richards  v.  Shaw,  67  111.  222. 

7*  Champlin  v.  Rowley,  18  Wend.  187,  13  Wend.  258. 

7  5  Catlin  v.  Tobias,  26  N.  Y.  217;  Haslack  v.  Mayers,  26  N.  J.  Law.  284; 
Witherow  v.  Witherow,  16  Ohio,  238.  See  Ilolden  Steam  Mill  v.  Westervelt, 
67  Me.  44G. 

7«  Avery  v.  Willson,  81  N.  Y.  341.  See  Churchill  v.  Holton,  38  Minn.  519,  38 
N.  W.  61L 


Cll.   8]  DELIVERY    OF    WRONG    QUANTITY.  191 

be  delivered,  but  without  any  reservation.  It  was  held  that  the 
seller  could  recover  for  the  glass  delivered.  The  case  was  dis- 
tinguished on  the  ground  that  in  the  earlier  case,  the  hay  being 
deliverable  in  parcels,  the  buyer  could  not  reject  a  partial  delivery, 
and  hence  there  was  no  waiver  of  the  condition  that  the  whole 
must  be  delivered;  but  that  in  the  case  at  bar,  the  delivery  of  the 
whole  being  required  to  be  made  at  one  time,  the  buyer  could  de- 
cline to  receive  a  partial  delivery,  and  that  consequently  acceptance 
of  a  partial  delivery  operated  as  a  waiver  of  the  condition. 
''More  or  Less'^ — "^6ouL" 

When  the  contract  states  the  amount  to  be  delivered  with  the 
qualification  of  the  words  "more  or  less,"  "about,"  or  words  of 
similar  import,  the  seller  is  allowed  a  certain  latitude  in  respect  to 
the  quantity.  The  following  rules  have  been  laid  down  by  the 
supreme  court  of  tlie  United  States: ''''  (1)  When  the  goods  are 
identified  by  reference  to  independent  circumstances,  such  as  an 
entire  lot  in  a  certain  warehouse,  or  all  that  may  be  manufactured 
in  a  certain  establishment,  or  that  may  be  shipped  in  a  certain  ves- 
sel, and  the  quantity  is  named  with  such  words  of  qualification, 
the  contract  applies  to  the  specific  lot,  and  the  naming  of  the  quan- 
tity is  not  regarded  as  a  warranty,  but  only  as  an  estimate  of  the 
probable  amount,  in  reference  to  which  good  faith  is  all  that  is 
required  by  the  party  making  it.^®  (2)  Where  no  such  independent 
circumstances  are  referred  to,  and  the  agreement  is  to  furnish  goods 
to  a  certain  amount,  the  quantity  specified  is  material,  and  governs 
the  amount;  and  the  words  of  qualification  are  only  for  the  purpose 
of  providing  against  accidental  variations  arising  from  slight  and 
unimportant  excesses  or  deficiencies.'^^  (3)  In  the  last  case,  how- 
ever, if  the  words  of  qualification  are  supplemented  by  other  stip- 
ulations or  conditions  which  give  them  a  broader  scope,  or  more 
extensive  significance,  the  contract  is  governed  by  such  added  stip- 
ulations or  conditions.      The  case  in  which  these  rules  were  stated 

77  Brawley  v.  U.  S.,  96  U.  S.  168. 

78  McConnel  v.  Murphy,  L.  R.  5  P.  C.  203;  McLay  v.  Perry,  44  Law  T. 
(N.  S.)  152. 

7»  NorringtOD  v.  Wright,  115  U.  S.  188,  6  Sup.  Ct.  12;  Creighton  v.  Com- 
stock,  27  Ohio  St.  548;  Clap  v.  Thayer,  112  Mass.  296;  Cockerell  v.  Aucompte, 
26  Law  J.  C.  P.  194, 


192  pp:rformanoe  of  coktract.  [Ch.  8 

fell  under  the  last  rule.**  The  contract  was  with  the  government 
for  880  cords  of  wood,  "more  or  less,*'  as  should  be  determined  to  be 
necessary  by  the  post  commander  for  the  regular  supply,  in  ac- 
cordance with  army  regulations,  of  the  garrison  of  a  certain  post 
for  one  year,  and  the  post  commander  at  once  notified  the  seller 
that  only  40  cords  would  be  required,  and  it  was  held  that  the  gov- 
ernment was  liable  for  only  40  cords. 

DELIVERY  BY  INSTALLMENTS. 

104.  Where  there  is  a  contract  for  the  sale  of  goods  to 
be  delivered  in  installments,  -which  are  to  be  separately 
paid  for,  and  the  seller  makes  defective  deliveries  in 
respect  to  one  or  more  installments,  or  the  buyer  neglects 
or  refuses  to  take  delivery  or  to  pay  for  one  or  more 
installments,  the  authorities  differ. 

(a)  According   to   the   more   recent    English   decisions 

and  to  some  decisions  in  this  country,  it  is  a 
question,  in  each  case  depending  on  the  terms 
of  the  contract  and  the  circumstances  of  the  case, 
whether  the  breach  of  contract  is  a  repudiation 
of  the  whole  contract,  or  whether  it  is  a  severa- 
ble breach,  giving  rise  to  a  claim  for  compensa- 
tion, but  not  to  a  right  to  treat  the  w^hole  contract 
as  repudiated. 

(b)  According  to  the  w^eight  of  authority  in  the  United 

States,  a  breach  in  respect  to  the  delivery  of 
any  installment  gives  the  buyer  a  right  to  re- 
pudiate the  w^hole  contract. 

Rule  in  England. 

It  is  impossible  to  reconcile  the  English  decisions  on  this  sub- 
ject," some  of  which  have  held  that  the  refusal  to  deliver  or  to 
accept  a  particular  installment  is  a  breach  going  to  the  root  of  the 

80  Brawley  v.  U.  S..  9G  U.  S.  168.  See,  also,  Callmeyer  v.  Mayor,  etc, 
83  N.  Y.  116. 

81  Benj.  Sales,  §§  593,  593a;  Chalm.  Sale,  p.  50. 


Ch.  8]  DELIVERY    BY    INSTALLMENTS.  193 

contract,"  and  others  of  which  have  held  the  contrary."     The  lead- 
ing case  in  the  affirmative  is  Hoare  v.  Rennie.«*     In  that  case  the 
defendant  agreed  to  buy  from  the  plaintiff  667  tons  of  iron,  to  be 
shipped  from  Sweden  in  about  equal  portions  in  each  of  the  months 
of  June,  July,  August,  and  September,  and  the  plaintiff  shipped 
only  20  tons  in  June,  which  the  defendant  refused  to  accept.     It 
was  held  that  delivery  at  the  time  specified  was  a  condition  pre 
cedent,  and  that  the  plaintiff  could  not  maintain  an  action  against 
the  defendant  for  not  accepting.     The  leading  case  in  the  negative 
is  Simpson  v.  Crippin.««     In  that  case  the  defendant  had  agreed  to 
supply  the  plaintiff  with  6,000  or  8,000  tons  of  coal,  to  be  delivered 
in  the  plaintiff's  wagons  at  the  defendant's  colliery  in  equal  monthly 
quantities  during  the  period  of  12  months  from  July  1st.     During 
July  the  plaintiff  sent  wagons  for  158  tons  only,  and  on  the  1st  of 
August  the  defendant  wrote  that  the  contract  was  canceled  on  ac- 
count of  the  plaintiff's  failure  to  send  for  the  full  monthly  quantity 
in  the  preceding  month.     It  was  held,  in  an  action  on  the  defend- 
ant's refusal  to  go  on  with  the  contract,  that  the  breach  in  failing 
to  send  wagons  in  sufficient  numbers  in  the  first  month,  though  a 
ground  for  compensation,  did  not  justify  the  defendant  in  rescinding 
the  contract.      The  rule  has  been  finally  settled  in  England  as  above 
stated  by  Mersey  Steel  &  Iron  Co.  v.  Naylor,««  in  which  the  point 
decided  was  that  failure  of  the  buyer  to  pay  for  the  first  installment 
upon  delivery,  unless  the  circumstances  evince  an  intention  on  his 
part  to  be  bound  no  longer  by  the  contract,  does  not  entitle  the 
seller  to  rescind. 
Rule  in  the  United  States. 

In  this  country  the  same  conflict  of  authority  has  existed,  some 
cases  substantially  following  Hoare  v.  Rennie,«^  and  others  Simpson 

«2  Withers  v.  Reynolds,  2  Barn.  &  Adol.  882;  Hoare  v.  Rennie,  5  Hurl. 
&  N.  19,  29  Law  J.  Exch.  73;   Honck  v.  Muller,  7  Q.  B.  Div.  92. 

33  Jonassohn  v.  Young,  4  Best  &  S.  296,  32  Law  J.  Q.  B.  385;  Simpson 
V.  Crippin,  L.  R.  8  Q.  B.  14;   Freeth  v.  Burr,  L,  R.  9  C.  P.  208. 

84  5  Hurl.  &  N.  19,  29  Law  J.  Exch.  73. 

88  L.  R.  8  Q.  B.  14. 

86  9  App.  Cas.  434,  affirming  9  Q.  B.  Div.  G48. 

87  Norriugton  y.  Wright,  115  U.  S.  188,  G  Sup.  Ct.  12;  Cleveland  Rolling 
Mill  V.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882;  Pope  v.  Porter,  102  N.  Y. 
366,  7  N.  E.  304;    Clark  v.  Wheeling  Steel  Works,  3  C.  C.  A    600.  53  Fed. 

SALES— 13 


194  PErvFORMANCE    OF    C0NTI5ACT.  [Cll.   8 

V.  Crippin,"  The  recent  case  of  Norrin^on  v.  Wrig^ht,'*  In  the  su- 
preme court  of  the  United  States,  however,  has  gone  far  to  establish 
the  rule  in  this  country  in  confonnity  with  the  firpt  of  these  cases. 
In  Norrington  t.  Wright  the  contract  was  for  the  sale  of  "5,000  tons 
of  iron  rails,  for  shipment  from  European  port  or  ports,  at  the  rate 
of  about  1,000  tons  per  month,  beginning  February,  1880,  but  whole 
fonti-act  to  be  shipped  before  August,  1S80,  at  $45  per  ton,  ex  ship 
Philadelphia,  settlement  cash  on  presentation  of  bills,"  etc.  It  was 
held  that  the  seller  was  bound  to  ship  1,000  tons  in  each  month, 
and  that  only  400  tons  having  been  shipped  in  February,  and  885 
tons  in  March,  the  buyer,  although  he  had  paid  for  the  February 
shipment  in  ignorance  of  the  defective  shipments  in  that  month  and 
in  March,  had  the  right  to  rescind  the  whole  contract  for  the  de- 
fective deliveries  in  respect  to  the  first  installments.  The  decision 
rests  on  the  ground  that  in  contracts  of  merchants  time  is  of  the 
essence,  and  that  the  shipment  at  the  time  specified  in  the  contract 
was  a  condition  precedent,  on  failure  of  which  the  buyer  might 
rescind  the  whole  contract.  The  court  reviews  the  later  English 
cases,  and  prefers  the  doctrine  of  Hoare  v.  Rennie  to  that  of  Simp- 
son V.  Crippin,  both  on  principle  and  authority.  It  is  to  be  noted 
that  Gray,  J.,  in  commenting  on  Mersey  Steel  &  Iron  Co.  v.  Naylor, 
observes  that  the  grounds  of  decision  in  that  case,  as  stated  by  the 
lord  chancellor,  are  applicable  to  the  failure  of  the  buyer  to  pay  for, 
and  not  to  the  failure  of  the  seller  to  deliver,  the  first  installment;  *" 

494;  Peace  River  Phosphate  Co.  v.  Grafflin,  58  Fed.  550;  King  Philip  Mills 
V.  Slater,  12  R.  I.  82;  Rugg  v.  Moore,  110  Pa.  St.  23G,  1  Atl.  320;  Rcybold  v. 
Voorhees,  30  Pa.  St.  116.  See,  also,  Dwinel  v.  Howard,  30  Me.  258;  Walton 
V.  Black,  5  Houst.  149;  Bradley  v.  King,  44  IlL  339;  Stokes  v.  Baars,  18  Fla. 
656;  Higgins  v.  Delaware,  L.  &  W.  R.  Co.,  60  N.  Y.  553. 

88  Bollman  v.  Burt,  61  Md.  415;  Blackburn  v.  Reilly,  47  N.  J.  Law,  290, 
1  Atl.  27;  Trotter  v.  Heckscher,  40  N.  J.  Eq.  012,  4  Atl.  83;  Myer  v.  Wheeler, 
65  Iowa,  390,  21  N.  W.  692;  Hansen  v.  Consumers'  Steam-Heating  Co.,  73 
Iowa,  77,  34  N.  W.  495.  See,  also,  an  article  by  Mr.  Landreth,  21  Am. 
Law  Reg.  398,  in  which  he  concludes  that  the  weight  of  American  authority 
supports  the  English  rule. 

89  115  U.  S.  188,  6  Sup.  Ct.  12. 

6  0  The  English  editor  of  Benjamin  on  Sales,  commenting  on  Norrington 
V.  Wright,  says  that  "this  appears  to  be  an  entire  misapi)iohension  of  that 
«ase  [Mersey  Steel  &  Iron  Co.  v.  2saylor,  9  App.  Cas.  434J  both  in  the  house 


Cll.   8]  DELIVERY    TO    CARRIER.  195 

but  whether  a  different  decision  would  have  been  reached  in  the 
supreme  court  had  the  question  turned  on  a  failure  to  pay  does  not 
appear.  In  a  later  case  ®^  in  the  supreme  court  the  same  rule  was 
applied  where  the  first  installment  had  been  delivered  and  paid  for, 
aud  the  default  consisted  in  failure  to  deliver  the  rest  of  the  quan- 
tity within  the  time  specified, 

DELIVERY  TO  CARRIER 

105.  Where,  in  pursuance  of  a  contract  of  sale,  the  seller 
is  authorized  or  required  to  send  the  goods  to  the  buyer, 
delivery  of  the  goods  to  a  carrier,  -whether  named  by  the 
buyer  or  not,  for  the  purpose  of  transmission  to  the  buyer, 
is  prima  facie  deemed  to  be  a  delivery  to  the  buyer.^^ 

As  we  have  already  seen,*^  when  the  seller  is  bound  to  send  the 
goods  to  the  buyer,  a  delivery  to  a  common  carrier  is  delivery  to  the 
buyer  himself,  the  carrier  becoming  the  bailee  of  the  person  to  whom 
the  goods  are  sent.®*  If,  however,  the  seller  is  bound  to  deliver  at 
the  buyer's  residence  or  at  a  distant  place,  the  carrier  is  the  seller's 
bailee  for  the  purpose  of  carriage,  and  delivery  to  the  carrier  is  not 
delivery  to  the  buyer.®'  And,  although  the  seller  may  be  author- 
ized to  deliver  to  a  earner,  he  may  nevertheless  reserve  the  right 
of  disposal,  and,  if  he  does  so,  delivery  to  the  carrier  is  not  delivery 

of  lords  and  in  the  court  of  appeal,  which  lies  in  the  application  of  a  gen- 
eral  principle  equally   applicable    whether  the  breach   of   contract   is  com- 
mitted by  one  or  other  of  the  parties  to  the  contract."    Benj.  Sales  (Bennett's 
6th  Am.  Ed.)  §  593a. 
81  Cleveland  Rolling  Mill  v.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882. 

8  2  Chalm.  Sale,  §  35. 

9  3  Ante,  pp.  61,  99. 

8*  Wait  V.  Baker,  2  Exch.  1;  Dunlop  v.  Lambert,  6  Clark  &  F.  600;  Wil- 
cox Silver  Plate  Co.  v.  Green,  72  N.  Y.  17;  Strong  v.  Dodds,  47  Vt.  348; 
Stafford  v.  Walter,  67  111.  83;  Pennsylvania  Co.  v.  Holderman,  69  Ind.  18; 
Sarbecker  v.  State,  G.5  Wis.  171,  26  N.  W.  541.  But  though  the  carrier  is  the 
buyer's  agent  to  receive,  he  is  not  his  agent  to  accept.    Ante,  p.  57. 

8  5  Dunlop  V.  Lambert,  6  Clark  &  F.  600;  Thompson  v.  Cincinnati,  W.  & 
Z.  R.  Co.,  1  Bond,  152,  Fed.  Cas.  No.  13,950;  Bloyd  v.  PoUocks,  27  W.  Va. 
75,  Devine  v.  Edwards,  101  III.  138;  Braddock  Glass  Co.  v.  Irwin,  153  Pa. 
St  440,  25  Atl.  490, 


196  PJ.RFORMANCE    OF    CONTRACT.  [Ch.  8 

to  the  buyer."  If  the  buyer  designates  a  particular  carrier  or  a  par- 
ticular route,  delivery  to  a  different  carrier  or  to  a  carrier  for  ship- 
ment by  a  different  route  is  not  delivery  to  the  buyer." 


SAME— DUTY  TO  INSURE  SAFE  ARRIVAL. 

106.  Unless  other-w^ise  authorized  by  the  buyer,  the 
seller  must  take  such  steps  as  may  be  reasonable  to  make 
the  carrier  responsible  for  the  safe  carriage  and.  arrival 
of  the  goods;  and  if  the  seller  fails  to  do  so,  and  the  goods 
are  lost  or  damaged  in  transit,  the  buyer  may  decline  to 
treat  the  delivery  to  the  carrier  as  delivery  to  himself.^* 

"Delivery  of  goods  to  a  carrier  or  wharfinger,  with  due  care  and 
diligence,  is  sufficient  to  charge  the  purchaser,  but  he  has  a  right 
to  require  that  in  making  the  delivery  due  care  and  diligence  shall 
be  exercised  by  the  seller."  *®  The  seller  must  use  the  usual  pre- 
caution to  insure  delivery.^""  Thus  where  the  seller  neglected  to 
apprise  the  carrier  that  the  value  of  the  goods  exceeded  £5,  although 
the  carriers  had  published,  and  it  was  notorious  in  the  place 
of  shipment,  that  they  would  not  be  responsible  for  a  package 
above  that  value  unless  entered  and  paid  for  as  such,  and  the  pack- 
age was  lost,  it  was  held,  in  an  action  for  goods  sold  and  delivered, 
that  there  had  been  no  delivery. ^"^     If  the  goods  are  misdirected 

96  Ante,  p.  104. 

97  Filley  v.  Pope,  115  U.  S.  213,  6.  Sup.  Ct.  19;  Wheelhouse  y.  Parr,  141 
Mass.  593,  6  N.  E.  787;   lasigi  v.  Rosenstein,  65  Hun,  591,  20  N.  Y.  Supp.  491. 

98  See  Chalm.  Sale,  35;  Sale  of  Goods  Act,  §  32. 

99  Buckman  v.  Levi,  3  Camp.  414,  per  Lord  EUenborough.  If  the  dealings 
of  the  parties  show  that  the  seller  is  bound  under  the  contract  to  insure  when 
requested,  and  the  seller  on  request  fails  to  insure,  and  the  goods  are  lost, 
he  cannot  recover  payment  New  York  Tartar  Co.  v.  French,  154  Pa.  St. 
?.73,  26  Atl.  425. 

100  Clarke  v.  Hutchins,  14  East,  475;  Ward  v.  Taylor,  fjQ  111.  494.  Where 
the  order  was  to  ship  by  rail  immediately,  and  the  railroad  company  refused 
to  transport  without  a  release  of  liability,  a  delivery  on  these  terms  was. 
good.    Stafford  v.  Walter,  07  IlL  83. 

101  Clai-ke  v.  Hutchins.  14  East,  475. 


Ch.  8]  buyer's  right  of  examination.  197 

by  the  seller,  so  as  to  prevent  their  receipt  by  the  buyer,  the  delivery 
is  bad.^°^  But  the  buyer  must  take  any  risks  of  deterioration  nec- 
essarily incident  to  the  transit.^**' 


BUYER'S  RIGHT  OF  EXAMINATION. 

107.  Unless  otherwise  agreed,  when  the  seller  tenders 
delivery  of  goods  to  the  buyer,  he  is  bound,  on  request, 
to  afford  the  buyer  a  reasonable  opportunity  of  examining 
the  goods  for  the  purpose  of  ascertaining  whether  they  are 
in  conformity  with  the  contract."^ 

An  offer  of  delivery,  accompanied  with  refusal  to  permit  examina- 
tion, or  without  reasonable  opportunity  to  inspect,  is  invalid.^"* 

The  buyer  is  not  deemed  to  have  accepted  until  he  has  had  a  rea- 
sonable opportunity  to  inspect.  He  may,  however,  waive  inspec- 
tion.^"® And  if  he  fails  to  inspect  within  a  reasonable  time  he  can- 
not afterwards  reject  the  goods.^"^     The  right  of  inspection  carries 

102  Finn  v.  Clark,  10  Allen,  479,  12  Allen,  522;  Gairetson  v.  Selby,  37 
Iowa,  529. 

103  Bull  V.  Robison,  10  Exch.  342,  24  Law  J.  Exch.  165;  Leggat  v.  Sands' 
Ale  Brewing  Co.,  60  111.  158.    And  see  ante,  p.  173. 

104  Chalm.  Sale,  §  37. 

105  islierwood  v.  Wliitmore,  11  Mees.  &  W.  347,  10  Mees.  &  W.  757;  Lory- 
mer  v.  Smith,  1  Barn.  &  C.  1;  Croninger  v.  Crocker,  62  N.  Y.  151.  Where 
goods  are  sent  by  carrier,  the  buyer  has  a  right  to  examine  when  they  reach 
their  destination.  Pierson  v.  Crooks,  115  N.  Y.  539,  22  N.  E.  349.  Where 
delivery  of  hides  was  to  be  on  payment  of  draft,  an  offer  to  allow  examina- 
tion at  the  railway  station  was  sufficient.  Sawyer  v.  Dean,  114  N.  Y.  469, 
21  N.  E.  1012.  A  purchaser  of  lumber,  sent  to  his  yard  in  box  cars  in  which 
It  cannot  be  examined,  may  unload,  inspect,  and  examine  before  acceptance. 
Holmes  v.  Gregg  (N.  H.)  28  Atl.  17. 

106  Castle  V.  Sworder,  30  Law  J.  Exch.  310,  312,  per  Cockbum,  C.  J.  The 
circumstances  of  the  sale  may  be  such  that  the  law  will  not  imply  the  right 
to  inspect  before  delivery  and  payment.    Pettitt  v.  Mitchell,  4  Man.  &  G.  819. 

107  Toulmin  v.  Hodley.  2  Car.  &  K.  157;  Lincoln  v.  Gallagher,  79  Me.  189, 
8  Atl.  883;  Doane  v.  Dunham,  79  111.  131;  Brownlee  v,  Bolton,  44  Mich.  218, 
6  N.  W.  657;  Boothby  v.  Scales,  27  Wis.  626;  McClure  v.  Jefferson,  85  Wis. 
208,  54  N.  W.  777;  Knoblauch  v.  Kronschnabel,  18  Minn.  300  (Gil.  272);  Max- 
well v.  Lee,  34  Minn.  511,  27  N.  W.  196. 


IDS  PERFORMANCE  OF  CONTRACT.  [Ch.  8 

with  it  the  right,  if  necessary  for  the  purpose  of  testing,  to  use  a 
reasonable  quantity  of  the  goods."* 


ACCEPTANCE. 

108.  The  buyer  is  deemed  to  have  accepted  the  goods 

(a)  When  he  intimates  to  the  seller  that  he  has 

accepted  them,  or 

(b)  When  the  goods  have  been  delivered  to  him, 

and  he  does  any  act  in  relation  to  them  vsrhich 
is  inconsistent  -with  the  ownership  of  the 
seller,  or 

(c)  When,  after  the  lapse  of  a  reasonable  time,  he 

retains  the  goods  without  intimating  to  the 
seller  that  he  has  rejected  them.'*^ 

Duty  to  Accept. 

Acceptance  and  delivery  being  concurrent  conditions,  the  duty 
to  accept  does  not  arise  unless  the  delivery  or  offer  of  delivery  is 
sufficient.  Therefore  the  buyer  is  not  bound  to  accept  unless  he 
has  had  an  opportunity  to  inspect,^"  or,  on  a  sale  by  sample,  unless 
he  has  had  an  opportunity  to  compare  the  bulk  with  the  sample,^ ^^ 
or  unless  the  offer  of  delivery  is  made  at  a  proper  time,^^^  or  if  the 
delivery  is  of  too  great  or  too  small  a  quantity.^ ^'  On  the  other 
hand,  if  the  delivery  or  offer  of  delivery  is  good,  the  buyer  is  bound 
to  accept.      If  the  contract  of  sale  is  such  that  the  seller  need  not 

108  Philadelphia  Whiting  Co.  v.  Detroit  White-Lead  Works,  58  Mich.  29, 
24  N.  W.  881.  But,  where  the  buyer  has  notified  the  seller  of  his  rejection, 
he  cannot  use  a  portion  of  the  goods  in  making  a  test,  for  the  pui-pose  of 
determining  the  question  of  their  fitness,  or  of  providing  evidence  of  their 
unfitness,  and  still  insist  on  his  right  to  reject  them.  Cream  City  Glass  Co. 
V.  Friedlander,  84  Wis.  53,  54  N.  W.  28. 

109  Chalm.  Sale,  §  38. 

110  Ante,  par.  107. 

111  Lorymer  v.  Smith,  1  Bam.  &  C.  1;  Toulmln  v.  Hedley,  2  Car.  &  K. 
157.    Ante,  p.  175. 

112  Ante,  p.  185  et  seq. 
118  Ante,  p.  188  et  seq. 


Ch.   8]  ACCEPTANCE.  199 

send  the  goods,  the  buyer  is  bound  to  accept  if  the  seller  affords 
him  reasonable  facilities  to  remove  the  goods.^^* 
Meaning  of  ^^ Acceptance." 

"Acceptance"  in  performance  of  the  contract  is  an  assent  by  the 
buyer  that  the  goods  are  to  be  taken  by  him  in  performance  of  the 
contract""  Acceptance  may,  however,  be  implied  from  the  buyer's 
conduct,  in  which  case  he  is  deemed  to  have  assented.  Acceptance 
in  performance  of  the  contract  appears  to  be  identical  with  the  ac- 
ceptance necessary  to  satisfy  the  statute  of  frauds,  as  the  statute  is 
construed  in  the  United  States."®  But  in  England,  where  any  deal- 
ing with  the  goods  which  recognizes  a  pre-existing  contract  of  sale 
is  now  held  to  constitute  an  acceptance  under  the  statute,"^  an  ac- 
ceptance in  performance  of  the  contract  is,  of  course,  quite  different 
from  a  statutorj^  acceptance. 
Same — Express  Acceptance. 

Of  express  acceptance, — that  is,  acceptance  where  the  buyer  inti- 
mates to  the  seller  that  he  accepts  the  goods, — little  need  be  said. 
Any  form  of  words  that  expresses  assent  is  enough.^^*  As  we  have 
seen,  acceptance  may  precede  delivery;  and  where  the  sale  is  of  a 
specific  chattel  in  a  deliverable  state,  in  which  the  property  passes 
at  once,  the  acceptance  is  expressed  by  the  contract  itself.^^" 

Same — Implied  Acceptance — Acts  of  Ownership. 

Acceptance  is  implied  from  a  resale  or  from  any  act  on  the  part  of 
the  buyer  which  he  would  not  have  a  right  to  perform  if  he  were  not 
the  owner  of  the  goods.^^"  The  rule  in  this  respect  is  the  same  as 
under  the  statute  of  frauds.^ ^^  Thus  where  the  bulk  was  inferior 
to  the  sample,  but  the  buyer  offered  the  goods  on  sale  at  a  limited 

114  Ante,  p.  183. 

1 1 5  Ante,  p.  51. 

116  Ante,  p.  54. 
iiT  Ante,  p.  57. 

118  Saunders  v.  Topp,  4  Exch.  390,  18  Law  J.  Exch.  374. 
118  Ante,  p.  54. 

120  Parker  v.  Palmer,  4  Bam.  &  Aid.  387;  Chapman  v.  Morton,  11  Mees. 
&  W.  534;  Harnor  v.  Groves,  15  C.  B.  667;  Warden  v.  Marshall,  99  Mass. 
305;  Brown  v.  Foster,  108  N.  Y.  387,  15  N.  E.  608;  Delamater  T.  Chappell, 
48  Md.  245;    Hill  v.  McDonald,  17  Wis.  97. 

121  Ante,  p.  55. 


200  PERFORMANCE    OF    CONTRACT.  [Ch.   8 

price  at  auction,  althoiif^h  the  limit  was  not  reached,  it  was  held 
that  ho  could  not  afterwards  reject.^ ^"  A  sale  of  a  pari  constitutes 
an  acceptance  of  the  whole.^^' 

Same — Fa  Hare  to  Reject. 

Although  receipt  is  totally  distinct  from  acceptance,  receipt  will 
become  acceptance  if  the  right  to  reject  is  not  exercised  within  a 
reasonable  time.^**  What  is  a  reasonable  time  is  a  question  of 
fact  depending  on  the  circumstances  of  the  case,  A  usage  of  the 
Liverpool  corn  market,  allowing  the  buyer  one  day  to  object  on  the 
ground  that  the  com  is  not  equal  to  sample,  has  been  held  reason- 
able and  binding  on  the  buyer.^^"*  The  same  has  been  held  of  a 
usage  not  to  examine  goods  sold  at  wholesale  until  opened  for  sale 
to  consumers  in  due  course  of  trade.^^°  Uut,  if  the  bu^-er  rightfully 
rejects,  he  is  not  bound  to  return  the  goods,  but  need  do  no  more 
than  notify  the  seller  of  his  refusal  to  accept^" 

PAYMENT. 

109.  IN  CASH  —  Unless  the  contract  of  sale  otherwise 
provides,  the  buyer  must  pay  in  cash. 

i«*  Chapman  v.  Morton,  11  Mees.  &  W.  534. 

123  Parker  v.  Palmer,  4  Barn.  &  Aid.  387. 

124  Sanders  v.  Jameson,  2  Car.  &  K.  557;  Hobbs  v.  Massasoit  Whip  Co., 
158  Mass.  194,  33  N.  E.  495;  Gaylord  Manufg  Co.  v.  Allen,  53  N.  Y.  515; 
Mason  v.  Smith,  130  N.  Y.  474,  29  N.  E.  749;  Treadwell  v.  Reynolds,  39 
Conn.  31;  Boughton  v.  Standish,  48  Vt.  594;  Watkins  v.  Paine,  57  Ga.  50; 
Carondelet  Iron  Works  v.  Moore,  78  111.  65;  Pratt  v.  Peck,  70  Wis.  620,  36 
N.  W.  410;  Gaff  V.  Homey er,  59  Mo.  345;  Mackey  v.  Swartz,  60  Iowa,  710, 
15  N.  W.  576;  Knoblauch  v.  Kronschnabel.  18  Minn.  300  (Gil.  272);  Ber- 
thold  V.  Seevers  Mauuf'g  Co.  (Iowa)  56  N.  W.  669;  Foss-Schneider  Brewing 
Co.  V.  Bullock,  8  C.  C.  A.  14,  59  Fed.  83.  But  where  articles  not  correspond- 
ing with  the  sample  were  retained  with  the  understanding  that  the  seller 
should  make  them  correspond,  and  not  be  paid  till  he  had  done  so,  no 
acceptance  could  be  implied.    Mahoney  v.  McLean,  26  Minn.  415,  4  N.  W.  784. 

12B  Sanders  v.  Jameson,  2  Car.  &  K.  557. 

128  Doane  v.  Dimham,  79  IlL  131. 

"7  Grimoldby  v.  Wells,  L.  R.  10  O.  P.  391;  McCormick  H.  M.  Co.  v. 
Chesrown,  33  Minn.  32,  21  N.  W.  846;  Exhaust  Ventilator  Co.  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  69  Wis.  454,  34  N.  W.  509. 


Ch.  8]  PAYMENT.  201 

110.  BY  NEGOTIABLE  SECURITY— Where  a  negotia- 
ble security  to  which  the  buyer  is  a  party  is  received  in 
payment  of  the  price,  the  presumption  in  most  jurisdic- 
tions is  that  such  payment  is  conditional,  though  in  some 
jurisdictions  the  presumption  is  that  it  is  absolute. 

Since  delivery  and  payment  are,  unless  the  contract  provides  oth- 
erwise, concurrent  conditions,  the  duty  of  the  buyer  to  pay  does  not 
ordinarily  arise  unless  the  seller  is  ready  and  willing  to  deliver/^^ 
But  at  common  law  a  debtor  has  no  right  to  wait  until  demand 
made,  but  must  pay  as  soon  as  the  money  is  due,  at  the  peril  of  be- 
ing sued;  and  since  the  seller  is  not  bound,  in  the  absence  of  ex- 
press agreement,  to  carry  the  goods  to  the  buyer,^^®  it  follows  that 
in  such  cases,  as  soon  as  the  sale  is  completed,  if  the  seller  is  ready 
and  willing  to  deliver  the  goods,  the  buyer's  duty  to  fetch  and  pay 
for  them  arises,  and  an  action  is  at  once  maintainable  against  him 
for  the  price.^^**  If  the  property  has  passed,  he  must  pay  for  them, 
even  if  they  have  been  destroyed  while  in  the  seller's  possession.^^^ 
If  credit  is  given,  he  has  a  right  to  their  possession  without  pay- 
ment.^ ^^ 
Tender  of  Payment. 

The  buyer  discharges  his  duty  by  a  tender  as  well  as  by  actual 
payment.  To  be  a  defense,  the  tender  must  be  kept  good,  and  the 
money  in  most  jurisdictions  must  be  actually  paid  into  court.  When 
this  is  done,  and  the  plea  is  sustained,  although  the  tender  does 
not  discharge  the  debt,  it  is  a  bar  to  the  action;  that  is,  the  seller 
is  entitled  to  the  money  paid  into  court,  while  the  buyer  recovers 
judgment  with  costs.^*^     Upon  the  subject  of  tender  there  is  noth- 

128  See  ante,  p.  178. 
128  Ante,  p.  183. 

130  Ante,  p.  183;  Benj.  Sales.  §  707. 

131  Ante,  p.  83  et  seq. 

132  J.eonard  v.  Davis,  1  Black,  476;  ante,  pp.  83,  179;  post,  p.  207. 

133  James  v.  Vane,  2  El.  &  El.  883,  29  Law  J.  Q.  B.  169;  Pennypacker  v. 
Dmberger,  22  Pa.  St.  492;  Wheeler  v.  Woodward,  66  Pa.  St  158;  Taylor 
▼.  Brooklyn  El.  R.  Co.,  119  N.  Y.  561,  23  N.  E.  \106. 


202  PERFORMANCE    OF    CONTRACT.  [Ch.  8 

ing  peculiar  to  the  law  of  sales,  and  the  reader  is  referred  else- 
where for  the  rules  a&  to  what  constitutes  a  valid  teuder.^^* 
Payment  by  Neyotiiible  Security — Coaditional  Payimnt. 

Where  the  contract  is  silent  as  to  the  manner  of  payment,  it  is 
always  implied  that  the  payment  shall  be  in  cash.**"  The  contract 
may,  however,  provide  for  payment  by  a  negotiable  security,  as  a 
promissory  note  or  a  bill  of  exchange,  and  such  payment  may  be  ab- 
solute or  conditional,  according  to  the  agreement  of  the  parties. 
But  in  the  absence  of  any  agreement  to  the  contrary,  express  or  im- 
plied, a  payment  by  negotiable  security  is  in  most  jurisdictions  pre- 
sumed to  be  conditional,  so  that  if  the  security  is  not  duly  honored 
the  seller's  right  to  the  price  revives.  This  is  the  general  rule  where 
payment  of  an  indebtedness  is  made  by  a  bill  or  a  note,*^'  and  it 
ordinarily  applies  although  the  debtor  is  not  a  party  to  the  security, 
as  drawer,  acceptor,  maker,  or  indor-ser,**^  But,  where  at  the  time 
of  the  sale  the  paper  of  a  third  person  is  taken  in  payment  without 
indorsement  or  guaranty  of  the  buyer,  the  presumption  is  that  the 
note  is  taken  in  absolute  payment;  *^^  though,  if  such  paper  is  taken 
with  the  indorsement  or  guaranty  of  the  buyer,  the  presumption  is 
that  it  is  only  conditional  payment.*^*  Payment  by  check  or  draft 
is  presumed  to  be  conditional.*''"     These  various  presumptions  may 

184  Clark,  Cont  pp.  639-643;  Benj.  Sales  (6th  Am.  Ed.)  §  712  et  seq.,  and 
Bennett's  note,  p.  732. 

136  Ante.  p.  84. 

136  2  Daniel,  Neg.  Inst.  (4th  Ed.)  §  1260;  Ames,  Cas.  Bills  &  N.  p.  571, 
note  2,  p.  874,  par.  6;  Benj.  Sales,  §  729  et  seq.,  and  Bennett's  note,  p.  724. 
An  intention  to  take  a  bill  or  a  note  in  absolute  paj-meut  must  be  clearly 
shown,  and  not  deduced  from  ambiguous  expressions,  such  as  that  the  bill 
was  taken  "in  payment"  for  the  goods  or  in  discharge  of  the  price.  Sted- 
man  v.  Gooch,  1  Esp.  5;  Maillard  v.  Duke  of  Argyle,  6  Man.  &  G.  40;  Kemp 
V.  Watt,  15  Mees.  &  W.  672. 

18  7  Ames,  Cas.  Bills  &  N.  571,  note  2. 

i38Whitbeck  v.  Van  Ness,  11  Johns.  409;  Breed  v.  Cook,  15  Johns.  241; 
Noel  V.  Murray,  13  N.  Y.  167;  Bicknall  v.  Waterman,  5  R.  I.  43;  Eaton  v. 
Cook,  32  Vt.  58;  Bayard  v.  Shunk,  1  Watts  &  S.  92;  2  Daniel,  Neg.  Inst. 
(4th  Ed.)  §  1264. 

139  Monroe  v.  Hoff,  5  Denio,  360;  Butler  v.  Haight,  8  Wend,  535;  Whit- 
ney V.  Goin,  20  N.  H.  354.  This  presumption  may  be  rebutted.  Soffe  v. 
Gallagher,  3  E.  D.  Smith,  507;    2  Daniel,  Neg.  Inst.  (4Lh  Ed.)  $  1265. 

140  2  Daniel,  Neg.  Inst.  (4th  Ed.)  §  1623. 


Ch.  8]  PAYMENT.  203 

all  be  rebutted  by  evidence  showing  a  different  intention  on  the  part 
of  the  parties.  In  Massachusetts,  Maine,  Vermont,  Indiana,  and 
Louisiana,  on  the  other  hand,  the  ordinary  rule  is  reversed;  and, 
where  a  promissory  note  or  bill  of  exchange  is  given  in  payment  of 
an  indebtedness,  the  payment  is  presumed  to  be  absolute,  though 
this  presumption  may  be  rebutted.^ *^  The  effect  of  the  giving  of 
a  promissory  note  or  bill  of  exchange  in  payment  belongs  to  the  law 
of  negotiable  instruments,  and  the  reader  is  referred  to  the  books 
upon  that  subject 
Payment  to  Agent. 

Whether  an  agent  is  authorized  to  receive  payment  depends  upon 
the  law  of  agency,  and  need  not  here  be  considered.  It  is  to  be 
noted,  however,  that  a  factor,  and  generally  an  agent  who  is  in- 
trusted with  the  possession  of  goods  with  authority  to  sell  them,  is 
entitled  to  receive  payment;  ^*^  but  that  a  broker,  and  generally  an 
agent  who  is  not  intrusted -with  the  possession  of  the  goods,  is  not 
entitled  to  receive  payment.^*^  "If  a  shopman,  who  is  authorized 
to  receive  payment  over  the  counter  only,  receives  payment  else- 
where than  at  the  shop,  the  payment  is  not  good."  ^**  Payment 
to  an  agent  employed  to  sell  must  be  in  money,  in  the  usual  course 
of  business.^*^ 

141  Daniel,  Neg.  Inst.  (4th  Ed.)  §  1260;  Ames,  Oas.  Bills  &  N.  p.  571,  note  2. 

1*2  Hornby  v.  Lacy,  6  Maule  &  S.  166;  Fish  v.  Kempton,  7  C.  B.  687; 
Whlton  V.  Spring,  74  N.  Y.  169,  173;  Seiple  v.  Irwin,  30  Pa.  St.  513,  515; 
Butler  V.  Dorman,  68  Mo.  298,  300;  Bailey  v.  Pardridge,  134  111.  188,  27  N. 
E.  89. 

143  Baring  v.  Corrie,  2  Barn.  &  Aid.  137;  Higgins  v.  Moore,  34  N.  Y.  417; 
Seiple  V.  Irwin,  30  Pa.  St.  513;  Law  v.  Stokes,  32  N.  J.  Law,  249;  Butler 
V.  Dorman,  68  Mo.  298;  Clark  v.  Smith,  88  111.  298;  McKindly  v.  Dunham^ 
55  Wis.  515,  13  N.  W.  485. 

1**  Kaye  v.  Brett,  5  Exch.  269,  per  Parke,  B. 

i*B  Catterall  v.  Hindle,  L.  R.  1  C.  P.  186,  35  Law  J.  C.  P.  161,  per  Keating, 
J.;  McCulloch  v.  McKee,  16  Pa.  St  289;  Trudo  v.  Anderson,  10  Mich.  357; 
Wheeler  v.  Givan,  65  Mo.  89;  Aultman  v.  Lee,  43  Iowa,  404. 


204  RIGHTS    OF    UNPAID    SELLER   AGAINST    THE    GOODS.  [Ch,   9 

CHAPTER  IX. 

RIGHTS  OF  UNPAID  SELLER  AGAINST  THE  GOODS. 

111.  In  (.Jeueral. 

112-116.  Seller's  Lien. 

117-121.  Stoppage  in   TransIttL 

122.  Right  of  Resale. 

IN  GENERAL. 

HI.  Subject  to  the  provisions  of  §§  112-122,  the  unpaid 
seller  of  goods,  as  such,  has  by  implication  of  law: 

(a)  A  lien  on  the  goods  for  the  price  -while  he  is  in 

possession  of  them. 

(b)  In  case  of  the  insolvency  of  the  buyer,  a  right  of 

stopping    the    goods    in   transitu    after    he    has 
parted  -with  the  possession  of  them. 

(c)  A  right  of  resale.' 

When  the  property  in  goods  passes  by  a  sale,  it  does  not  follow  nec- 
essarily that  the  right  of  possession  also  passes.  So  long  as  the  goods 
remain  in  the  seller's  possession  he  has,  unless  he  has  waived  it,  a 
lien  for  the  payment  of  the  price.  Even  if  they  have  passed  out 
of  his  actual  possession  into  the  hands  of  a  carrier  for  delivery  to 
the  buyer,  he  has  the  right,  in  case  of  the  latter's  insolvency,  to  in- 
tercept the  goods,  and  to  prevent  them  from  coming  into  his  actual 
possession.  When  he  has  exercised  his  right  of  lien  or  of  stoppage 
in  transitu,  he  has,  under  certain  circumstances,  the  right  to  resell 
the  goods.* 

SELLER'S  LIEN. 

112.  The  unpaid  seller  of  goods,  who  is  in  possession  of 
them,  is  entitled  to  a  lien  for  the  price,  unless  he  has, 
expressly  or  by  implication,  w^aived  it;  that  is,  he  is  enti- 

»  Cbalm.  Sale,  S  42.  »  Benj.  Sales,  §  76(S. 


Ch.  9]  seller's  lien,  205 

tied  to  retain  possession  of  the  goods  until  payment  or 
tender  of  the  price. 

113.  WAIVER  BY  GIVING  CREDIT— The  seller  waives 
his  lien  by  implication,  unless  there  is  an  agreement  to 
the  contrary: 

(a)  If  he  sells  the  goods  on  credit. 

(b)  If  he  takes  a  bill  of  exchange  or  other  negotiable 

instrument  in  conditional  payment. 

114.  REVIVAL— The  lien  of  a  seller  who  is  still  in  pos- 
session of  the  goods  revives: 

(a)  When  the  goods  have  been  sold  on  credit,  but  the 

term  of  credit  has  expired. 

(b)  When   the   seller  has  taken  a  bill  of  exchange  or 

other  negotiable  instrument  in  conditional  pay- 
ment, and  the  condition  on  which  it  was  received 
has  not  been  fulfilled,  by  the  dishonor  of  the 
instrument  or  otherw^ise. 

(c)  When  the  goods  have  been  sold  on  credit,  or  the 

seller  has  taken  a  negotiable  instrument  in  con- 
ditional payment,  and  the  buyer  becomes  insol- 
vent, although  the  term  of  credit  has  not  expired 
or  the  instrument  received  in  conditional  pay- 
ment has  not  matured,  and  not-withstanding  that 
the  seller  is  in  possei?sion  of  the  goods  as  agent 
or  bailee  for  the  buyer 

115.  TERMINATION— The  selAer  loses  his  lien: 

(a)  When   he  unconditionally  delivers   the  goods 

to  the  buyer  or  his  agent;  subject,  however, 
to  the  revival  of  the  lien  if  he  continues  in 
possession  of  the  goods  as  agent  or  bailee 
for  the  buyer  and  the  buyer  becomes  insol- 
vent, as  stated  in  the  last  section  (c). 

(b)  When  he  assents  to  a  subsale. 

116.  DELIVERY  OF  PART— When  the  seller  has  made 
a  delivery  of  part  of  the  goods,  he  may  exercise  his  right 


206  BiaHTS    OF   UNPAID    SELLER    AGAINST    THE    GOODS.  [Ch.   9 

of  lien  on  the  remainder,  unless  such  delivery  has  been 
made  under  such  circumstances  as  to  sho'w  an  intention  of 
■waiving  liis  lien.^ 

A  "lien,"  in  general,  may  be  defined  as  a  right  to  retain  the  pos- 
session of  ;i  tiling  until  a  debt  due  to  the  person  retaining  posses- 
sion is  sntisfiod.*  The  origin  of  tlie  seller's  lien  is  doubtful,  but  it 
is  probably  founded  on  the  custom  of  merchants."  Tt  has  been 
said  that  "the  term  'lien'  is  unfortunate,  because  the  seller's  rights, 
arising  out  of  his  original  ownership,  in  all  cases  exceed  a  mere 
lien."  ®  That  his  rights  exceed  a  mere  lien  will  appear  from  a  con 
sideration  of  the  peculiar  rights  which  arise  in  case  of  the  buyer's 
insolvency.''  But  as  the  rule  is  that  when  there  is  no  agreement, 
express  or  implied,  to  the  contrary,  the  seller  has  a  right  to  retain 
the  goods  until  the  payment  of  the  price,  he  has  in  all  cases,  at 
least,  a  lien.,  unless  he  has  waived  it.® 

The  lien  extends  only  to  the  price.  If,  by  reason  of  the  buyer's 
default  in  payment,  the  seller  incurs  warehouse  charges  or  other 
expenses  in  keeping  the  goods,  his  lien  does  not  extend  to  such 
charges,  which  are  incurred  for  his  own  benefit,  and  not  for  the 
benefit  of  the  buyer;  and  his  remedy,  if  any,  is  a  personal  one  against 
the  buyer." 

3  Chalm.  Sale,  §  44. 
*  Benj.  Sales,  §  796. 

5  Blackb.  Sales,  453. 

6  Chalm.  Sale,  p.  57. 

7  Post,  p.  20a 

8  Miles  V.  Gorton,  2  Cromp.  &  M.  504;  Arnold  v.  Delano,  4  Cush.  33,  39: 
Ware  River  R.  R.  v.  Vibbard,  114  Mass.  447;  Cornwell  v.  Haight,  8  Barb. 
327;  Owens  v.  Weedman,  82  111.  409;  Bradley  v.  Michael,  1  Ind.  551;  South- 
western Freight  &  Cotton  Exp.  Co.  v.  Stannard,  44  Mo.  71;  Conrad  v. 
Fisher,  37  Mo.  A  pp.  352. 

8  See  British  Empire  Shipping  Co.  v.  Somes,  El..  Bl.  &  EL  353,  27  Law 
J.  Q.  B.  397;  in  exchequer  chamber,  El.,  Bl.  &  El.  367,  28  Law  J.  Q.  B. 
220;  in  house  of  lords,  8  H.  L.  Cas.  338,  30  Law  J.  Q.  B.  229;  Crommelin 
V.  New  York  &  H.  R.  Co.,  *43  N.  Y.  90.  If  the  buyer  refuses  to  accept  tlie 
goods  sold  until  the  seller  recovers  judgment  for  the  price,  the  buyer  cannot 
recover  for  the  care  of  the  goods  between  the  sale  and  the  deliveiy,  since 
the  care  of  them  in  the  meantime  is  for  his  own  benefit  Putnam  v.  Glid- 
den,  159  Mass.  47,  34  N.  E.  81. 


Ch.  9]  sellfr's  lien.  207 

A  special  interest  in  the  goods  may  continue  to  exist  in  the  seller 
bj agreement, even  after  delivery;  but  such  an  interest  is  not  strictly 
a  lien,  which  is  always  detenninable  on  the  loss  of  possession.^" 
Waiver  of  Lien. 

"Lien  is  not  the  result  of  an  express  contract;  it  is  given  by  im' 
plication  of  law."  ^^  The  lien  may,  of  course,  be  waived  expressly. 
It  may  also  be  waived  by  implication,^^  as  by  reserving  an  express 
lien  for  the  price,  which  excludes  an  implied  one.^* 

The  lien  is  waived  by  implication  when  time  is  given  for  payment, 
and  nothing  is  said  as  to  delivery, — in  other  words,  when  the  sale 
is  on  credit;  ^*  although  the  parties  may,  of  course,  agree  that  not- 
withstanding the  credit  the  goods  are  not  to  be  delivered  until  pay- 
ment, and  the  same  term  may  be  introduced  into  the  contract  by  a 
usage  to  that  effect.^''  The  seller  also  waives  his  lien  by  taking  a 
bill  or  note  payable  at  a  distant  day,^'  though  the  lien  revives  on 
its  dishonor  or  on  the  insolvency  of  the  buyer.^^ 
Revival  of  Lien — Expiration  of  Credit. 

Although  the  sale  is  on  credit,  if  the  buyer  permits  the  goods  to 
remain  in  the  seller's  possession  till  the  credit  has  expired,  the  lien 
which  was  waived  by  the  giving  of  credit  revives,  even  though  the 

loDodsley  v.  Varley,  12  Adol.  &  E.  632;  Gregory  v.  Morris,  96  U.  S.  619; 
Sawyer  v.  Fisher,  32  Me.  28. 

1 1  Chambers  v.  Davidson,  L.  R.  1  P.  C.  296,  4  Moore,  P.  C.  (N.  S.)  158. 
per  Lord  Westbury. 

12  When  the  seller  of  standing  wood  permitted  the  buyer  to  cut  It,  he 
waived  his  lien.    Douglas  v.  Shumway,  13  Gray,  499. 

18  In  re  Leith's  Estate,  L.  R.  1  P.  C.,  at  page  305.  An  agreement  incon- 
sistent with  the  existence  of  the  lien  is  a  waiver  of  it.  Pickett  v.  Bullock, 
52  N.  H.  354. 

14  Spartali  v.  Benecke,  10  0.  B.  212,  19  Law  J.  C.  P.  293;  Leonard  v. 
Davis,  1  Black,  476;  Arnold  v.  Delano,  4  Gush.  33,  39;  McGraw  v.  Gilmer, 
83  N.  C.  162;  Crummey  v.  Raudeubush,  55  Minn.  426,  56  N.  W.  1113;  ante, 
p.  179. 

IB  Field  V.  Lelean,  6  Hurl.  &  N.  617,  30  Law  J.  Exch.  168. 

18  Valpy  V.  Oakeley,  16  Q.  B.  941,  951;  Griffiths  v.  Perry,  28  Law  J.  Q.  B. 
204,  207.  See,  also,  Hewison  v.  Guthrie,  2  Bing.  (N.  C.)  755;  Horncastle  v. 
Farran,  3  Barn.  &  Aid.  497.  Giving  a  promissory  note,  payable  on  demand, 
for  the  price,  does  not  divest  the  lien.    Clark  v.  Drapei",  19  N.  H.  419. 

17  Post,  p.  208. 


208  RIGHTS    OF    UNPAID   SELLER    AGAINST    THE    GOODS.  [Ch.   9 

buyer  may  not  be  insolvent.*'     And  the  rule  is  the  same  where  bills 
or  notes  are  g-iven  for  the  price,  which  are  dishonored  while  the 
goods  are  still  in  the  seller's  possession." 
Insolvency  of  Buyer. 

If  the  buyer  becomes  insolvent  while  the  goods  are  in  possession 
of  the  seller,  the  lien  revives  notwithstanding  that  the  goods  were 
sold  on  credit,  and  that  the  credit  has  not  expired.^"  The  lien  also 
revives  on  insolvency,  when  conditional  payment  was  made  by  bill 
or  note,  although  the  instrument  has  not  yet  matured.^ ^  This  right 
to  revive  the  lien  is  analogous  to  the  right  of  stoppage  in  transitu, 
and  has  sometimes  been  called  the  right  of  "stoppage  ante  tran- 
situm."  ^^  "The  vendor's  right  in  respect  of  his  price,"  said  Bailey, 
J.,  in  the  leading  case  of  Bloxam  v.  Sanders,^^  "is  not  a  mere  lien 

i«  New  V.  Swain,  1  Dan.  &  L.  193;  Bunney  v.  Poyntz,  4  Barn.  &  Adol. 
568;  Martindale  v.  Smith,  1  Q.  B.,  at  page  395;  Owens  v.  Weedman,  82 
111.  409;   Benj.  Sales,  §  825. 

19  Yalpy  V.  Oakeley,  16  Q.  B.  941,  20  Law  J.  Q.  B.  380;  Griffiths  v.  PeriT, 
1  El.  &  p]l.  680,  28  Law  J.  Q.  B.  204. 

20  Bloxam  v.  Sanders,  4  Barn.  &  C.  941;  Bloxam  v.  Morley,  Id.  951;  Grif- 
fiths V.  Perry,  1  El.  &  El.  680,  28  Law  J.  Q.  B.  204;  Gunn  v.  Bolckow,  10 
Ch.  App.  491;  Arnold  v.  Delano,  4  Gush.  33;  Parks  v.  Hall,  2  Pick.  206, 
212;  Parker  v.  Byrnes,  1  Lowell,  539,  Fed.  Gas.  No.  10,728.  per  Lowell,  J.; 
Haskell  v.  Rice,  11  Gray,  240.  per  Thomas,  J.;  Wanamaker  v.  Yerkes,  70 
Pa.  St.  443;  Tuthill  v.  Skidmore,  124  N.  Y.  148,  26  N.  E.  348;  Southwestern 
Freight  &  Cotton  Exp.  Co.  v.  Stannard,  44  Mo.  71;  Conrad  v.  Fisher,  37  Mo. 
App.  352;  Crummey  v.  Ilaudenbush,  55  Minn.  426,  56  N.  W.  1113;  Robinson 
V.  Morgan,  65  Vt.  37,  25  Atl.  899;  Bohn  Manul'g  Co.  v.  Hynes,  83  Wis.  388. 
53  N.  W.  684.  Contra,  Barrett  v.  Goddard,  3  Mason,  107,  Fed.  Gas.  No. 
1,046.  It  is  immaterial  whether  the  sale  is  of  specific  chattels  or  whether 
the  contract  is  executory.  Griffiths  v.  Perry,  1  El.  &  El.  680,  28  Law  J.  Q. 
B.  204. 

21  Valpy  V.  Oakeley,  16  Q.  B.  941,  20  Law  J.  Q.  B.  380;  Griffiths  v.  Perry, 
1  El.  &  El.  680,  28  Law  J.  Q.  B.  204;  Arnold  v.  Delano,  4  Cush.  33,  41; 
Parker  v.  Byrnes,  1  Lowell,  539,  Fed.  Gas.  No.  10,728,  per  Lowell,  J.;  Mil- 
liken  V.  Warren.  57  Me.  46.  It  is  immaterial  whether  the  notes  are  taken  in 
payment  or  as  secm-ity.  In  re  Batcbelder,  2  Lowell,  24,'>,  Fed.  Gas.  No.  1.099; 
Himter  v.  Talbot,  3  Smedes  &  M.  754.  Where  payment  is  to  be  on  delivery 
in  notes  of  a  third  person,  who  becomes  insolvent,  the  seller  need  not  deliver 
on  tender  of  such  notes.    Benedict  v.  Field,  16  N.  Y.  595. 

2  2  Benj.  Sales,  §  7(37. 
«8  4  Barn.  &  C.  941. 


Ch.  9]  seller's  lien.  209 

which  he  will  forfeit  if  he  parts  with  the  possession,  but  grows  out 
of  his  original  ownership  and  dominion.  If  the  goods  are  sold  on 
credit,  and  nothing  is  agreed  on  as  to  the  time  of  delivering  the 
goods,  the  vendee  is  immediately  entitled  to  the  possession;  and  the 
right  of  possession  and  the  right  of  property  vest  at  once  in  him; 
but  his  right  of  possession  is  not  absolute;  it  is  liable  to  be  defeated 
if  he  becomes  insolvent  before  he  obtains  possession.  If  the  seller 
has  dispatched  the  goods  to  the  buyer,  and  insolvency  occurs,  he  has 
a  right,  in  virtue  of  his  original  ownership,  to  stop  them  in  transitu. 
Why?  Because  the  property  vested  in  the  buyer  so  as  to  subject 
him  to  the  risk  of  any  accident;  but  he  has  not  an  indefeasible 
right  to  the  possession,  and  his  insolvency,  without  payment  of  the 
price,  defeats  that  right."  The  same  principle  was  clearly  stated 
in  a  Pennsylvania  case:  ^*  "Judges  do  not  ordinarily  distinguish 
between  the  retainer  of  goods  by  a  vendor  and  their  stoppage 
in  transitu  on  account  of  the  insolvency  of  the  vendee;  because  these 
terms  refer  to  the  same  right,  only  at  different  stages  of  performance 
and  execution  of  the  contract  of  sale.  If  the  vendor  has  a  right 
to  stop  in  transitu,  a  fortiori  he  has  a  right  of  retainer  before  any 
transit  has  commenced." 

Even  if  the  seller  has  broken  his  contract  to  deliver  while  the 
buyer  is  solvent,  the  lien  revives  on  the  buyer  becoming  in- 
solvent.^^ 

It  follows  naturally,  from  the  principle  on  which  this  right  rests, 
that  the  seller  does  not  lose  his  right  to  revive  the  lien  on  the  in- 
solvency of  the  buyer,  although  he  may  have  agreed  to  hold  the 
goods  as  the  buyer's  bailee.^*  As  in  the  case  of  stoppage  in  tran- 
situ, the  right  is  not  lost  by  a  technical  delivery,  so  long  as  the 

i*  White  V.  Welsh,  38  Pa.  St  396,  per  Lowrie,  C.  .J. 

«B  Valpy  V.  Oakeley,  16  Q.  B.  941,  20  Law  J.  Q.  B.  380;  Griffiths  v.  Perry, 
1  EI.  &  EL  680,  28  Law  J.  Q.  B.  204. 

26  Townley  v.  Crump,  4  Adol.  &  E.  58;  Grice  v.  Richardson,  3  App.  Gas. 
319;  Arnold  v.  Delano,  4  Gush.  33,  38;  Thompson  v.  Baltimore  &  O.  R. 
Co.,  28  Md.  396;  Conrad  v.  Fisher,  37  Mo.  App.  353;  Hamburger  v.  Rodman. 
9  Daly,  93.  96. 

SALES — 14 


210  RIGHTS    OF   UNPAID   SELLER    AGAINST    THE    GOODS.  [Ch.   9 

seller  is  in  a  position  to  prevent  the  goods  from  coming  into  the 
buyer's  actual  possession. 
Te}inination  of  Lien — Delivery. 

Inasmuch  as  the  riy,lit  of  lien  is  a  right  incident  to  possession,  the 
seller  ordinarily  loses  his  lien  when  he  delivers  the  goods,^'  even 
constructively,  to  the  buyer.  "When  the  buyer  is  solvent,  the  cases 
as  to  what  constitutes  an  'actual  receipt',  within  the  meaning  of  the 
statute  of  frauds,  appear  to  furnish  the  test  whether  the  seller's 
lieu  is  gone  or  not,"  ^®  "The  principle,"  says  Blackbura,  J.,*^  "is 
that  there  cannot  be  an  actual  receipt  by  the  vendee  so  long  as  the 
goods  continue  in  the  possession  of  the  seller,  so  as  to  preserve  his 
lien."  When  the  buyer  is  insolvent,  since  the  lien  revives  notwith 
standing  that  the  seller  holds  the  goods  as  bailee  for  the  buyer,  the 
cases  as  to  what  constitutes  an  actual  receipt  no  longer  furnish  a 
test 

If  the  goods  are  in  possession  of  the  seller,  a  delivery  takes  place, 
and  the  seller's  lien  is  divested,  whenever  the  parties  agree  that  the 
seller  shall  thenceforth  hold  as  the  bailee  of  the  buyer.'" 

If  the  goods  are  in  the  possession  of  the  buyer,  the  effect  of  the 
contract  being  to  transfer  the  right  of  possession  as  well  as  that 
of  property,  the  delivery  becomes  complete,  by  necessity,  without 
further  act  on  either  side.'^ 

If  the  goods  are  in  the  possession  of  a  third  person  as  bailee  of 

^7  Gregory  v.  Morris,  96  U.  S.  619,  623;  Arnold  v.  Delano,  4  Gush.  33,  39; 
Haskins  v.  Warren,  115  Mass.  514,  533;  Lupin  v.  Marie,  6  Wend.  77;  Bowen 
V.  Burk,  13  Pa.  St.  146;  .Johnson  v.  Famum,  56  Ga.  144;  Gook  v.  Perry, 
43  Mich.  629,  5  N.  W.  1054;  Thompson  v.  Wedge,  50  Wis.  642,  7  N.  W.  560. 
Delivery  is  not  effected  by  merely  marking  the  goods  with  the  buyer's 
name  or  setting  them  aside.  Goodall  v.  Skelton,  2  H.  Bl.  316;  Dixon  v. 
Yates,  5  Barn.  &  Adol.  313;  Townley  v.  Grump,  4  Adol.  &  E.  58.  Or  by 
boxing  them  by  the  buyer's  orders,  so  long  as  the  seller  holds  them  as  his, 
and  has  not  given  credit    Boulter  v.  Arnott,  1  Cromp.  &  M.  333. 

28  Chalm.  Sale,  62. 

2  8  Gusack  V.  Robinson,  30  Law  J.  Q.  B.,  at  page  264,  per  Blackburn, .J.; 
ante,  p.  60. 

80  Ante,  p.  62. 

Bl  In  re  Batchelder,  2  Lowell,  245,  Fed.  Gas.  No.  1,099;  Warden  v.  Mar- 
shall, 99  Mass.  305;  Martin  v.  Adams,  104  Mass.  262;  Benj.  Sales,  8  802; 
auie,  p.  64. 


Ch.  9]  seller's  lien.  211 

the  seller,  a  delivery  takes  place  whenever  such  third  person,  with 
the  seller's  assent,  attorns  to  the  buyer,  and  not  before.''  Thus  the 
transfer  of  a  delivery  order,  dock  warrant,  or  other  document,  which 
operates  only  as  a  token  of  authority  to  take  possession,  and  not  as 
a  transfer  of  possession,  does  not  divest  the  seller's  lien,  but  the 
pereon  in  whose  custody  the  goods  are  must  first  accept  the  order, 
or  in  some  way  attorn  to  the  buyer,  and  until  such  attornment  the 
seller  may  countermand  his  authority;  and,  even  though  the  seller 
may  have  waived  his  lien  by  a  sale  on  credit  or  by  accepting  con- 
ditional payment,  he  may  nevertheless,  upon  the  occurrence  of  the 
buyer's  insolvency  before  such  attornment,  countermand  the  au- 
thority, and  revive  his  lien.^^  Under  the  factors'  acts  and  other 
enactments,  however,  certain  other  documents  are  in  many  juris- 
dictions put  on  the  same  footing  as  bills  of  lading,  and  a  transfer 
of  such  documents  excludes  the  lien,  if  the  documents  get  into  the 
hands  of  a  holder  for  value.'* 
Same — Delivery  to  Carrier. 

Delivery  to  a  common  carrier  for  conveyance  to  the  buyer  is  prima 
facie  such  a  delivery  of  possession  as  puts  an  end  to  the  seller's 
lien."'  The  right  of  lien  becomes  changed  into  a  right  of  stoppage 
in  transitu  should  the  buyer  become  insolvent.  The  seller  may, 
however,  retain  his  lien  by  reserving  the  right  of  disposal.'* 
Same — Assent  to  Subsale. 

At  common  law,  the  seller's  lien  is  not  affected  by  any  sale, 
pledge,  or  other  disposition  of  the  goods  which  the  bu.yer  may  have 

82  McEwan  v.  Smith,  2  H.  L.  Cas.  309;  Farina  v.  Home,  16  Mees.  &  W. 
119;  Keeler  v.  Goodwin,  111  Mass.  490;  In  re  Batchelder,  2  Lowell,  245, 
Fed.  Cas.  No.  1,099;   ante,  p.  63. 

33  McEwan  v.  Smith,  2  H.  L.  Cas.  309;  Arnold  v.  Delano,  4  Cush.  33,  39, 
per  Shaw,  C.  J.;  Parker  v.  Byrnes,  1  Lowell,  539,  Fed.  Cas.  No.  10,728; 
Keeler  v.  Goodwin,  111  Mass.  490. 

8  4  In  some  states,  warehouse  receipts  are  by  statute  put  on  the  same 
footing  as  bills  of  lading.  In  others  they  have  been  given  the  same  effect 
by  the  courts  without  legislation.  See  Merchants'  Bank  v.  Hibbard,  48 
Mich.  118,  11  N.  W.  834;  Davis  v.  Russell,  52  Cal.  611;  Allen  v.  Maury, 
(16  Ala.  10.    As  to  factor's  acts,  ante,  p.  19. 

3  5  Ante,  p.  61. 

36  Ante,  p.  104. 


212  RIGHTS    OF   UNPAID    SELLER    AGAINST    THE    GOODS.  [Oil.   9 

made,  unless  he  has  assented  thereto.'^  This  fi)lh»\vs,  as  we  have 
seen,  from  the  general  principle,  "Nemo  dat  quod  non  habet."  " 
Thus  where  goods  lying  in  a  warehouse  of  a  third  person  were  sold, 
but  not  delivered,  aud  were  paid  for  in  the  buyer'sacceiJlauees,  which 
were  subsequently  dishonored,  and  before  they  became  due  the  buyer 
sold  to  a  second  purchaser,  it  was  held  that  the  second  purchaser, 
who  had  not  obtained  actual  or  constnictive  possession,  was  in  the 
same  position  as  the  original  buyer,  and  got  his  title  defeasible  on 
nonpayment  of  the  price  by  the  latter.'®  Nor  is  such  second  per- 
son in  a  better  position  by  reason  of  the  transfer  to  him  of  a  de- 
livery order  or  other  document  the  transfer  of  which  does  not  oper- 
ate as  a  delivery  of  the  goods,  unless  he  obtains  an  actual  or  con- 
structive delivery  from  the  warehouseman  before  the  original  seller 
has  countermanded  the  authority  and  asserted  his  lien.*** 

On  the  other  hand,  the  seller  may  be  estopped  from  asserting  his 
lien  by  assenting  to  the  subsale,  either  subsequently  *^  or  in  ad- 
vance.*^ Thus  when  the  second  purchaser  of  timber  lying  on  the 
premises  of  the  original  seller  informed  him  of  the  subsale,  and  the 
latter  said,  "Very  well,"  and  allowed  him  to  mark  the  timber  with 
his  name,  this  was  held  a  sufficient  subsequent  assent.*'     A  seller 

87  Dixon  V.  Yates,  5  Barn.  &  Adol.  313;  Palmer  v.  Hand,  13  Johns.  434; 
Mllliken  v.  Warren,  57  Me.  4G;    Haskell  v.  Rice,  11  Gray,  240,  241. 

88  Axite,  p.  17. 

89  Dixon  V.  Yates,  5  Barn.  &  Adol.  313. 

<o  McEwan  v.  Smith,  2  H.  L.  Cas.  309;  Farmcloe  v.  Bain,  1  C.  P.  Dlv. 
445;  Gunn  v.  Bolckow,  10  Ch.  App.  49G;  Keelor  v.  Goodwin,  111  Mass. 
490;   Anderson  v.  Read,  106  N.  Y.  333,  13  N.  E.  292. 

*i  Stoveld  V.  Hughes,  14  East,  308;  Pearson  v.  Dawson,  El.,  Bl.  &  El. 
448,  27  Law  J.  Q.  B.  248;  Woodley  v.  Coventry,  2  Hurl.  &  C.  1G4,  32  Law  J. 
Exch.  185;  Knights  v.  Wiffen,  L.  R.  5  Q.  B.  660;  Voorhis  v.  Olmstead,  65 
N.  Y.  113.  But  see  Southwestern  Freight  &  Cotton  Exp,  Co.  v.  Plant,  45 
Mo.  517. 

42  Merchant  Banking  Co.  of  London  v.  Phoenix  Bessemer  Steel  Co.,  5  Ch. 
Div.  205.  Where  the  original  seller  showed  the  goods  as  the  goods  of  the 
buyer,  without  claim  of  lien,  to  another,  who  afterwards  bought  them,  the 
hitter's  title  was  sustained  against  the  seller's  assignee  in  bankruptcy. 
Hunn  V.  Bowne,  2  Caines,  38. 

*3  stoveld  V.  Hughes,  14  East,  308.  But  tlie  fact  that  the  seller,  after 
notice  of  a  subsale,  iuquires  of  the  buyer  whether  he  shall  ship  to  the  sirb- 
purchaser,  and  asks  for  a  shipping  order  both  from  him  ajid  from  the  sub- 


Ch.   9]  STOPPAGE    IN    TRANSITU.  213 

may  assent  in  advance  by  issuing  to  the  buyer  documents  of  title 
which  contain  such  representations  of  fact  as  will  amount  to  an 
estoppel  against  a  second  purchaser.** 
<S^ame — Delivery  of  Part, 

Generally  speaking,  a  delivery  of  a  part  is  not  equivalent  to  a 
delivery  of  the  whole,  so  as  to  destroy  the  seller's  lien.  He  may 
give  up  part,  and  retain  the  rest,  and  maintain  a  lien  on  the  part 
retained  for  the  whole  price.*'  But  there  may  be  circumstances 
sufficient  to  show  that  there  was  no  intention  to  separate  the  part 
delivered  from  the  rest,  and  then  the  delivery  of  a  part  operates  as 
delivery  of  the  whole.*'  If  the  delivery  is  to  be  by  installments, 
and  one  installment  has  been  delivered,  but  not  paid  for,  the  seller 
may,  at  least  if  the  buyer  is  ini?olvent,  withhold  delivery  of  the  others 
until  he  has  been  paid  for  the  installment  delivered.*^  Any  install- 
ment which  has  been  paid  for  must  be  delivered,  even  though  the 
buyer  be  bankrupt.** 

STOPPAGE  IN  TRANSITU.** 

117.  When  the  buyer  of  goods  becomes  insolvent,  the 
unpaid  seller  -who  has  parted  Avith  the  possession  of  the 
goods  has  the  right  of  stopping  them  in  transitu;  that  is 
to  say,  he  may  resume  possession  of  the  goods  so  long  as 
they  are  in  course  of  transit,  and  may  retain  them  until 
payment  or  tender  of  the  price. 

purchaser,  does  not  show  a  waiver  of  the  lien.  Stoveld  v.  Hughes,  supra,  dis- 
tinguished in  Rol)inson  v.  Morgan,  G5  Vt.  37.  25  Atl.  899. 

**  Merchant  Banking  Co.  v.  Phoenix  Bessemer  Steel  Co.,  5  Ch.  Div.  205. 

*6  Dixon  v.  Yates,  5  Barn.  &  Adol.  313,  3-11;  -Miles  v.  Gorton,  2  Cromp. 
&  M.  504;  Haskell  v.  Rice,  11  Gray,  240;  Hamburger  v.  Rodman,  9  Daly, 
93;  Buckley  v.  Fumiss,  17  Wend.  504  (stoppage  in  transitu).  See  Parks 
V.  Hall,  2  Pick.  206.  A  carrier  may  retain  his  lien  for  the  whole  of  his 
charges,  notwithstanding  delivery  of  part.  Potts  v.  New  York  &  N.  E.  R. 
Co.,  131  Mass.  455. 

46  Benj.  Sales.   §  805. 

4T  Ex  parte  Chalmers,  8  Ch.  App.  289.  Whether  In  such  case  the  seller  may 
withhold  delivery  of  the  other  installments  if  the  buyer  is  not  insolvent  sopins 
doubtful.  See  Chalm.  Sales,  p.  61.  This  question  is  to  be  distinguished  from 
the  question  whether,  if  the  buyer  refuses  to  pay  for  one  installment,  the  seller 
may  repudiate  the  contract.     Ante,  p.  192. 

•8  Merchant  Banking  Co.  t.  Phoenix  Bessemer  Steel  Co.,  5  Ch.  Dlv.  205. 

4»  Chalm.   Sales.  46-58. 


214  RIGHTS    OF    UNPAID    SELLER    AGAINST    THE  ^OODS.  [Ch.  9 

118.  WHO  MAY  EXERCISE  THE  RIGHT— The  right 
of  stoppage  in  transitu  may  be  exercised  by  any  person 
•who  stands  in  a  position  substantially  analogous  to  that 
of  an  unpaid  seller. 

119.  DURATION  OF  TRANSIT— Goods  are  deemed  to 
be  in  course  of  transit  from  the  time  they  are  delivered 
to  a  carrier  by  land  or  water,  for  the  purpose  of  trans- 
mission to  the  buyer,  until: 

(a)  The  buyer  or  his  agent  in  that  behalf  takes  deliv- 

ery of  the  goods  from  the  carrier,  either  befcJre 
or  after  their  arrival  at  the  appointed  destina- 
tion.    Or 

(b)  After  the  arrival   of  the  goods  at  their  appointed 

destination  the  carrier  attorns  to  the  buyer, 
and  continues  in  possession  as  bailee  for  the 
buyer.     Or 

(c)  The  carrier  wrongfully  refuses  to  deliver  the  goods 

to  the  buyer  or  his  agent  in  that  behalf.     Or 

(d)  The  seller  waives  his  right  of  stoppage  in  transitu. 

120.  HOW  THE  RIGHT  IS  EXERCISED— The  unpaid 
seller  may  exercise  his  right  of  stoppage  in  transitu  either: 

(a)  By  taking  actual  possession  of  the  goods.     Or 

(b)  By  giving  notice    of  his   claim   to    the    carrier   or 

other  bpdlee  in  actual  possession  of  the  goods,  or 
to  his  principal. 

121.  HOW  THE  RIGHT  MAT  BE  DEFEATED— The 
right  of  stoppage  in  transitu  is  defeasible  in  one  w^ay  only, 
viz.  when  the  goods  are  represented  by  a  bill  of  lading, 
and  the  buyer,  being  in  possession  thereof  with  the  seller's 
assent,  transfers  it  to  a  bona  fide  purchaser  for  value. 

The  right  of  stoppage  in  transitu  is  founded  upon  mercantile 
rules,  and  is  borrowed  from  the  custom  of  mercliants.  Thie  doctrine 
was  first  recognized  in  equity,  and  was  subsequently  introduced  into 
the  courts  of  common  law.°°  The  right  arises  only  on  the  insol- 
vency of  the  buyer,  and  is  based  on  the  plain  reason  of  justice  and 

»o  Gibson  V.    Carruthers,   8   Mees.    &   W.   337,    per   Lord   Ablnger;     Blackb. 
Sales.  315-317. 


Ch.    9]  STOPPAGE    TN    TRANSITU.  215 

equity  tliat  one  man's  goods  shall  not  be  applied  to  the  payment 
of  another  man's  debts.^^  It  does  not  arise  until  the  seller's  lien 
is  gone,  for  it  presumes  that  the  seller  has  parted  with  the  posses- 
sion as  well  as  the  property  in  goods.  It  is  often  said  to  be  a  mere 
extension  of  the  seller's  lien;  ^"^  and,  as  has  been  shown, °^  it  is  closely 
analogous  to  the  right  of  the  seller  in  actual  possession  to  reassert 
his  lien,  notwithstanding  a  previous  waiver  of  it,  upon  the  insol- 
vency of  the  buyer. 
Who  may  Exercise  the  Right. 

On  account  of  its  intrinsic  justice,  the  courts  are  inclined  to  look 
with  favor  on  the  right  of  stoppage  in  transitu,  and  to  extend  the 
right  to  any  one  whose  position  is  substantially  analogous  to  that  of 
an  unpaid  seller."*  The  right  may  be  exercised  by  a  consignor  or  fac- 
tor who  has  bought  goods  for  his  principal  with  his  own  money  or 
credit;  ^^  by  an  agent  of  tlie  seller  to  whom  the  bill  of  lading  has 
been  indorsed;  "^  by  the  seller  of  an  interest  in  an  executory  con- 
tract; ^'^  by  a  surety  who  has  paid  the  price;  "^  by  a  principal  con- 
signing goods  to  his  factor,  though  the  factor  has  made  advances 
or  has  a  joint  interest  with  the  consignor.''"  It  may  be  exercised 
by  an  agent  who  has  power  to  act  in  behalf  of  the  seller;  *"  but, 

81  D'Aquila  v.  Lambert,  2  Eden,  at  page  77,  1  Amb.  399,  per  Lord  North- 
ington. 

5  2  Rowley  V.  Bigelow,  12  Pick.  307,  313,  per  Shaw,  C.  J. 

B3  Ante,  p.  208. 

64  Benj.  Sales,  §  830. 

66  Feise  v.  Wray,  3  East,  93;  Tucker  v.  Humphrey,  4  BIng.  516;  Newhall 
V.  Vargas,  13  Me.  93;  Seymour  v.  Newton,  105  Mass.  272,  275;  Muller  v. 
Pondir,  55  N.  Y.  325;  Gossler  v.  Scbepeler,  5  Daly,  47G.  Otherwise  where 
an  agent  having  a  lien  for  advances  ships  at  his  principal's  request  to  a 
buyer.    Gwyn  v.  Richmond  &  D.  R.  Co.,  85  N.  C.  429. 

5  6  Morison  v.  Gray,  2  Bing.  260. 

6  7  Jenkyns  v.  Usborne,  7  Man.  &  G.  678,  8  Scott,  N.  R.  505. 

68  Imperial  Bank  v.  London  &  St.  K.  Docks  Co.,  5  Ch.  Div.  195  (having 
regard  to  the  mercantile  law  amendment  act,  by  which  a  surety  is  given  the 
remedies  of  the  creditor).  In  Siffken  v.  Wray,  6  East,  371,  it  was  held  that 
a  mere  surety  for  the  buyer  had  no  right  to  stop  in  transitu.  Beuj.  Sales, 
§83L 

68  Kinloch  v.  Craig,  3  Term  R.  119;    Newsom  v.  Thornton,  6  East,  17. 

60  Whitehead  v.  Anderson,  9  Mees.  &  W.  518;  Bell  v.  Moss,  5  Whart. 
189;    Reynolds  v.  Boston  &  M.  R.  R.,  43  N.  H.  580. 


216  RIGHTS    OF   UNPAID    SELLER    AGAINST    THE    GOODS.  [Ch.   9 

if  the  agent  acts  without  authority,  it  seems  that  ratification 
after  the  buyer  has  demanded  the  goods  of  the  carrier  is  too  late."* 
The  right  of  stoppage  is  not  impaired  by  partial  payment,"  or  by 
the  receipt  of  a  bill  of  exchange  or  other  negotiable  instrument  in 
conditional  payment,  even  though  the  seller  may  have  negotiated 
the  bill  so  that  it  is  outstanding,  unmatured,  in  the  hands  of  a  third 
person."' 
Against  TfTiom  the  Right  may  be  Exercised. 

The  right  may  be  exercised  only  against  a  buyer  who  is  insolvent. 
Insolvency  means  general  inability  to  pay  one's  debts  in  the  usual 
course  of  business."*  The  fact  that  the  buyer  has  stopped  payment 
has  generally  been  considered  as  a  matter  of  course  to  be  such  in- 
solvency as  to  justify  stoppage  in  transitu.""* 

If  the  seller  stops  in  transitu  before  the  buyer  has  become  in- 
solvent, he  does  so  at  his  peril;  but  if,  on  the  arrival  of  the  goods 
at  their  destination,  the  buyer  is  then  insolvent,  the  premature  stop- 
page will  avail  for  the  protection  of  the  seller.""     The  seller  may 

«i  Bird  V.  Brown,  4  Exch.  786.  Ratification  before  stoppage  is  sufficient. 
Durgy  Cement  &  U.  Co.  v.  O'Brien,  123  Mass.  12.  A  power  of  attorney 
dispatched  before  the  stoppage,  which  the  agent  did  not  receive  till  after- 
wards, and  of  which  he  was  ignorant,  was  a  sufficient  ratification.  Hutch- 
ings  V.  Nunes,  1  Moore,  P.  C.  (N.  S.)  243. 

82  Feise  v.  Wray,  3  East,  93;   Edwards  v.  Brewer,  2  Mees.  &  W.  375. 

63  Benj.  Sales,  §  835,  citing  Feise  v.  Wray,  3  East,  93;  Patten  v.  Thomp- 
son, 5  Maule  &  S.  350;  Edwards  v.  Brewer,  2  Mees.  &  W.  375;  Miles  v. 
Gorton,  2  Crorap.  &  M.  504.  See,  also.  Hays  v.  Mouille,  14  Pa.  St.  48;  Moses 
V.  Rasin,  14  Fed.  772,  774;  Diem  v.  Koblita,  49  Ohio  St.  41,  29  N.  E.  1124. 
But  see  Arnold  v.  Delano,  4  Cush.  33,  39. 

e*  Biddlecombe  v.  Bond,  4  Adol.  &  E.  332;  Durgy  Cement  &  U.  Co.  v. 
O'Brien,  123  Mass.  12,  13;  Benedict  v.  Scaettle,  12  Ohio  St.  515;  Reynolds 
V.  Boston  &  M.  R.  R.,  43  N.  H.  580;  Loeb  v.  Peters,  63  Ala.  243;  Secombe 
V.  Nutt,  14  B.  Mon.  324;  Crummey  v.  Raudenbush  (Minn.)  .56  N.  W.  1113. 
Cf.  Millard  v.  Webster,  54  Conn.  415,  8  Atl.  470  (the  inability  of  the  buyer 
to  pay  all  his  debts,  if  his  creditors  had  pressed  for  payment,  does  not  show 
insolvency). 

•  B  Dixon  V.  Yates,  5  Barn.  &  Adol.  313;  Bird  v.  Brown,  4  Exch.  786; 
O'Brien  v.  Norris,  16  Md.  122.  It  is  enough  if  it  be  shown  that  the  seller 
would  have  had  no  prospect  of  receiving  payment  when  the  debt  should 
fall  due.    Bloomingdale  v.  Memphis  &  C.  R.  Co.,  6  Lea,  616. 

««  The  Constantia,  6  C.  Rob.  Adm.  321,  per  Lord  StowelL 


Ch.   9]  STOPPAGE   W  TRANSITU.  217 

stop  for  insolvency  which  existed  at  the  time  of  the  sale,  provided 
he  did  not  then  know  of  it.'^ 

The  right  of  stoppage  is  paramount  to  the  claims  of  all  persons 
claiming  under  the  buyer,  except  against  one  who  claims  the  goods  by 
virtue  of  a  transfer  for  value  of  the  bill  of  lading;  ®*  and  it  is  there- 
fore superior  to  the  rights  of  a  creditor  of  the  buyer  who  attaches 
the  goods  while  in  transit.*®  It  is  subject,  however,  to  the  lien  of 
the  carrier  for  his  charges  on  the  goods.'^°  The  right  of  stoppage 
is  simply  against  the  goods,  and  hence  does  not  extend  to  insurance 
money  due  to  the  buyer  for  damage  to  the  goods.'' ^ 
Meaning  of  ^'Transit. ''^ 

The  right  of  stoppage  in  transitu  does  not  arise  unless  the  seller 
has  transferred  the  property  and  the  right  of  possession  to  the 
buyer,  and  the  actual  possession  to  the  carrier.'''^  The  essential 
feature  of  stoppage  in  transitu  is  that  the  goods  shall  be  at  the  time 
in  the  possession  of  a  middleman,  or  of  some  person  intervening  be- 
tween the  seller,  who  has  parted  with,  and  the  buyer,  who  has  not 
yet  received,  them.^'  Whether  there  is  a  transitus  at  all  will  de- 
pend, therefore,  on  whether  there  is  a  delivery  of  the  goods  by  the 
seller  to  an  intermediary  for  the  purpose  of  transmission  to  the 

«7  Reynolds  v.  Boston  &  M.  R.  R.,  43  N.  H.  580;  Benedict  v.  Scaettle,  12 
Ohio  St.  515;  O'Brien  v.  Norris,  16  Md.  122;  Loeb  v.  Peters,  63  Ala.  243; 
Buckley  v.  Furniss,  15  Wend.  137;  Kingman  v.  Denison,  84  Micii.  608,  48 
N.  W.  26.    Contra,  Rogers  v.  Thomas,  20  Conn.  54. 

68  Post,  p.  223. 

«8  Smith  V.  Goss,  1  Camp.  282;  Hays  v.  Mouille.  14  Pa.  St.  48;  Durgy 
Cement  &  U.  Co.  v.  O'Brien,  123  Mass.  12;  Calahan  v.  Babcocli,  21  Ohio  St. 
281. 

TO  Potts  V.  New  York  &  N.  E.  R.  Co.,  131  Mass.  455;  Hays  v.  Mouille, 
14  Pa.  St.  48;  Rucker  v.  Donovan,  13  Kan.  251.  But  the  carrier  cannot 
assert  a  lien  for  a  general  balance  between  himself  and  the  consignee. 
Oppenheim  v.  Russell,  3  Bos.  &  P.  42;  Pennsylvania  R.  Co.  v.  American 
Oil  Works,  126  Pa.  St.  485,  17  Atl.  671.  Where  a  creditor  of  the  buyer  at- 
taches in  transit,  the  seller,  though  he  may  still  stop  the  goods,  must  pay 
the  freight  money  advanced  by  the  creditor.  Greve  v.  Dunham,  60  Iowa,  108, 
14  N.  W.  130. 

Ti  Berndtson  v.  Strang,  3  Ch.  App.  588,  591. 

T2  See  Gibson  v.  Carruthers,  8  Mees.  &  W.  321,  334,  per  Parke,  B.;  Row- 
ley V.  Bigelow,  12  Pick.  307,  per  Shaw,  C.  J. 

T3  Schotsmans  v.  Lancashire  &  Y.  Ry.  Co.,  2  Ch.  App.  332,  per  Lord  Calms. 


218  RIGHTS    OF   UNPAID   SELLER    AGAINST   THE   GOODS.  [Ch.  9 

buyer.     If  tlie  delivery  is  directly  to  the  buyer,  or  to  a  servant  or 

agent  authorized  to  accept  delivery,  who  is  to  hold  the  goods  for 

him  or  to  deliver  them  subject  to  his  further  orders,  no  transitus 

arises. 

Delivery  on  Buyer^s  Ship. 

As  a  rule,  if  the  buyer  sends  his  own  servant  for  the  goods,  de- 
livery to  him  is  delivery  to  the  master,  and  if  he  sends  his  own  cart 
or  ship,  delivery  into  the  cart  or  on  board  the  ship  is  prima  facie 
delivery  to  the  buyer,''*  though,  even  where  he  sends  his  own  ship, 
the  seller  may  restrain  the  effect  of  the  delivery  by  taking  from  the 
captain  a  bill  of  lading  to  his  own  order, '">  in  which  case,  as  we  have 
seen,^^  the  property  does  not  pass,  and  the  seller  retains,  not  strictly 
speaking  the  right  of  stoppage  in  transitu,  but  the  right  of  disposal. 
It  has  been  held,  however,  in  England  and  in  Pennsylvania,  that 
if  by  the  terms  of  the  bill  of  lading  the  goods  are  deliverable  to  the 
buyer  or  his  assigns,  delivery  on  the  buyer's  own  ship  is  delivery 
to  him,  and  therefore  precludes  any  right  of  stoppage  in  transitu;  ''^ 
although  a  distinction  is  made  between  a  ship  owned  by  the  buyer 
and  one  merely  chartered  by  him.  In  the  case  of  a  chartered  ves- 
sel, the  master  is  regarded  as  an  intermediary  interposed  between 
the  seller  and  the  buyer,  and  not  as  the  buyer's  servant;  and  hence 
delivery  on  board  the  ship,  notwithstanding  that  by  the  bill  of  lad- 
ing the  goods  are  deliverable  to  the  buyer  or  assigns,  or  that  no 
bill  of  lading  is  issued,  does  not  preclude  the  seller  from  stopping  in 
transitu.^* 

In  this  country  the  courts  of  several  states  have  refused  to  rec- 

7  4  Van  Casteel  v.  Booker,  2  Exch.  G91;  Berudtson  v.  Strang,  L.  R.  4  Eq. 
481,  at  page  489. 

78  Van  Casteel  v.  Booker,  2  Exch.  691;  Turner  v.  Trustees  of  Liverpool 
Docks,  6  Exch.  543,  20  Law  J.  Exch.  394;  Gossler  v.  Schepeler,  5  Daly,  476. 

78  Ante,  p.  104. 

77  Schotsmans  v.  Lancashire  &  Y.  Ry.  Co.,  2  Ch.  App.  332;  Bolin  v.  HuCf- 
nagle,  1  Rawle,  9;   Thompson  v.  Stewart,  7  Phiia.  187. 

7  8  Bohtlingk  v.  Inglis,  3  East,  381;  Berndtson  v.  Strang,  L.  R.  4  Eq.  481, 
3  Ch.  App.  588;  Ex  parte  Rosevear  China  Clay  Co.,  11  Ch.  Div.  560;  Brindley 
V.  Cilgwyn  Slate  Co.  (1886)  55  Law  J.  Q.  B.  Dlv.  68.  But,  if  the  charter  party 
Is  such  that  the  ship  Is  demised  to  the  buyer,  so  that  the  captain  is  his  agent, 
the  vessel  is  considered  the  buyer's  own  ship.    Benj.  Sales,  §  843. 


Ch.    9]  STOPPAGE    IN    TRANSITU.  219 

ogiiize  a  different  rule  as  applying  to  a  sLip  owned  by  the  buyer.'* 
"The  true  distinction,''  says  Parsons,  C.  J.,  in  an  early  Massachu- 
setts case,^"  "is  whether  any  actual  possession  by  the  consignee 
or  his  assigns,  after  the  termination  of  the  voyage,  be  or  be  not  pro- 
vided for  in  the  bill  of  lading.  When  such  actual  possession,  after 
the  termination  of  the  voyage,  is  so  provided  for,  then  the  right  of 
stoppage  in  transitu  remains  after  the  shipment.  *  *  *  The 
same  rule  must  govern  if  the  consignor  be  such  owner.  If  the  goods 
are  delivered  on  board  his  ship,  to  be  carried  to  him,  an  actual 
possession  by  him  after  the  delivery  is  provided  for  by  the  terms 
of  the  instrument;  but,  if  the  goods  are  put  on  board  the  ship  to 
be  transported  to  a  foreign  market,  he  has  on  the  shipment  all  the 
possession  contemplated  in  the  bill  of  lading."  The  distinction  here 
dj'awn  is,  in  effect,  between  delivery  to  the  master,  not  as  the  serv- 
ant of  the  bu3'er,  but  as  an  intermediary  for  the  purpose  of  convey- 
ing the  goods  to  him,  and  delivery  on  board  the  ship  as  the  place  of 
delivery  appointed  by  him.  In  the  one  case  the  seller  may  stop 
in  transitu ;  in  the  other  no  transitus  ever  arises.  This  distinction 
is  reasonable  and  in  accordance  with  that  recognized  in  respect  to 
the  termination  of  the  transit,  viz.  that  delivery  to  an  agent  to  con- 
vey the  goods  to  the  buyer  does  not  terminate  the  transit,  but  that 
delivery  to  an  agent  to  hold  the  goods  subject  to  his  further  orders 
does  terminate  it.®^  That  no  transitus  ever  arises  where  the  goods 
are  delivered  on  board  the  ship  as  the  place  of  delivery  appointed 
by  the  buyer  has  been  recognized  on  both  sides  of  the  Atlantic. 
Such  is  the  character  of  the  delivery  where  the  buyer  orders  the 
goods  put  on  board  in  order  that  they  may  be  sent  on  a  mercantile 
venture  or  roving  voyage,*^  or  in  order  that  they  may  be  shipped 
from  his  place  of  business,  not  to  be  delivered  to  him  or  to  his  use^ 
but  to  a  third  person.®* 

79  Stubbs  V.  Lund,  7  Mass.  453;  Ilsley  v.  Stubbs,  9  Mass.  65;  Newhall  v. 
Vargas,  13  Me.  93;  Moore  v.  Hamilton,  44  N.  Y.  661,  666,  per  Earle,  J.  But 
see  Sturtevant  v.  Orser,  24  N.  Y.  538,  539. 

80  stubbs  V-  Lund,  7  Mass.  453. 

81  Post,  p.  221. 

82  Fowler  v.  McTaggart,  cited  in  Hodgson  v.  Loy,  7  Term  R.  442;  Berndt* 
son  V.  Strang,  L.  R.  4  Eq.  481,  at  page  489. 

as  Rowley  v.  Bigelow,  12  Pick.  307. 


220  RIGHTS    OF    UN    AID    SELLER    AGAINST    THE    GOODS.  [Ch.   9 

Termination  of  Transit — Delivery  to  Bayer. 

"Transit  embraces  not  only  the  carriage  of  the  goods  to  the  place 
where  delivery  is  to  be  made,  but  also  delivery  of  the  goods  there 
according  to  the  terms  of  the  contract  of  conveyance."  ®*  The  trans- 
it does  not  terminate  until  the  goods  pass  into  the  actual  or  con- 
structive possession  of  the  buyer.®"  So  long  as  the  buyer  declines 
or  fails  to  take  delivery  the  transit  continues.*'  What  will  amount 
to  a  taking  of  possession  is  a  question  in  relation  to  which  much  of 
the  law  referred  to  in  connection  with  actual  receipt  under  the  stat- 
ute of  frauds  *^  and  delivery  in  performance  of  the  contract  '*  will 
be  found  applicable.  As  in  the  case  of  the  seller's  lien,  a  mere  de- 
livery of  a  part  does  not  amount  to  a  delivery  of  the  whole,  so  as  to 
defeat  the  seller's  right  as  to  the  remainder,  unless  the  delivery  is 
made  under  such  circumstances  as  to  show  an  agreement  to  give 
up  the  whole  of  the  goods.**^  The  buyer  may  anticipate  the  end 
of  the  transit,  and  thereby  put  an  end  to  the  right  of  stoppage,  by 
taking  the  goods  into  his  actual  possession  before  they  reach  their 
appointed  destination. "" 

Same — Delivery  after  Bankruptcy. 

The  bankruptcy  of  the  buyer  not  being  a  rescission  of  the  con- 
tract, delivery  to  him  after  bankruptcy,  or  to  his  trustee  or  assignee 

8*  Kemp  V.  Falk,  7  App.  Cas.,  at  page  588,  per  Lord  Fitzgerald. 

8B  Whitehead  v.  Anderson,  9  Mees.  &  W.  518;  Crawshuy  v.  Eades,  1 
Bam.  &  C.  181;  Kitchen  v.  Spear,  30  Vt  545;  Seymour  v.  Newton,  105  Mass. 
272;  White  v.  Mitchell,  38  Mich,  390;  Greve  v.  Dunham,  60  Iowa,  108,  14 
N.  W.  130;    Symns  v.  Schotten,  35  Kan.  310,  10  Tuc.  828. 

86  Bolton  V.  Lancashire  &  Y.  Ry.  Co.,  L.  R.  1  C.  P.  431;  James  v.  Griffin, 
2  Mees.  &  W.  623;  Jenks  v.  Fulmer,  160  Pa.  St.  527,  28  Atl.  841;  Kingman 
&  Co.  V.  Denison,  84  Mich.  608,  48  N.  W.  26;    Mason  v.  Wilson,  43  Ark.  172. 

87  Ante,  p.  60  et  seq. 

88  Ante,  p.  179  et  seq. 

89  Bolton  V.  Lancashire  &  Y.  Ry.  Co.,  L.  R.  1  C.  P.,  at  page  440;  Ex  parte 
€ooper,  11  Ch.  Div.  68;  Kemp  v,  Falk,  7  App.  Cas.,  at  page  586,  per  Lord 
Blackburn;   Buckley  v.  Furniss,  17  Wend.  504.    Cf.  ante,  p.  213. 

8  0  Whitehead  v.  Anderson,  9  Mees.  •&  W.  518,  534;  London  &.  N.  W.  Ry.  Co. 
T.  Bartlett,  7  Hurl.  «&  N.  400,  31  Law  J.  Exch.  92;  Stevens  v.  Wheeler,  27 
Barb.  658;  Mohr  v.  Boston  &  A.  R.  R.,  106  Mass.  72,  per  Morton,  J.;  Wood 
▼.  Yeatman,  15  B.  Mon.  270. 


Ch.   9]  STOPPAGE    IN   TRANSITU.  221 

in  bankruptcy,  terminates  the  transit.®^  If  the  property  has  passed, 
and  the  goods  have  come  into  the  possession  of  the  insolvent  buyer, 
he  cannot  afterwards  rescind  the  sale,  and  thus  give  a  preference 
to  the  seller  over  the  general  creditors.®^  But  before  the  goods  have 
come  into  his  possession  he  may,  with  the  assent  of  the  seller, 
rescind  the  sale,  or  else  refuse  to  take  possession,  and  thus  leave 
unimpaired  the  right  of  stoppage  in  transitu,  unless  his  assignee 
succeeds  in  getting  possession  before  the  right  is  exercised.®' 
Same — Delivery  to  Agent. 

Delivery  of  the  goods  at  their  appointed  destination  to  an  agent 
authorized  to  receive  delivery  is  delivery  to  the  buyer,  and  ends  the 
transit.  But  delivery  to  his  agent  before  they  have  reached  their 
destination  does  not  necessarily  end  the  transit. 

The  goods  may  be  in  transit  although  they  have  left  the  hands 
of  the  person  to  whom  the  seller  intrusted  them  for  transmission; 
it  is  immaterial  how  many  agents  they  may  have  passed  through, 
if  they  ha^  e  not  reached  their  destination.  The  term  "transit"  does 
not  necessarily  imply  that  the  goods  are  in  motion.  "It  the  goods 
are  deposited  with  one  who  holds  them  merely  as  agent  to  forward, 
and  has  custody  as  such,  they  are  as  much  in  transitu  as  if  they  were 
actually  moving,"  ®*  Thus  goods  may  still  be  in  transitu,  though 
lying  in  a  warehouse  to  which  they  have  been  sent  by  the  seller's 
orders.  Goods  sold  in  Chicago  to  a  merchant  in  Liverpool,  and 
lying  in  a  warehouse  in  New  York  awaiting  shipment  to  Liverpool  in 
pursuance  of  the  buyer's  original  order  to  send  them  to  Liverpool, 

81  Ellis  V.  Hunt,  3  Term  R.  467;  Inglis  v.  Usherwood,  1  East,  515;  Con- 
yers  v.  Ennis,  2  Mason,  236,  Fed.  Cas.  No.  3,149;  Millard  v.  Webster,  54 
CJonn.  415,  8  Atl.  470;  McElroy  v.  Seery,  61  Md.  389. 

8  2  Barnes  v.  Freeland,  6  Term  R.  80. 

83  Atkin  V.  Barwick,  1  Strange,  165;  Salte  v.  Field,  5  Term  R.  211;  Grout 
V.  Hill,  4  Gray,  361;  Tufts  v.  Sylvester,  79  Me.  213,  9  Atl.  357;  Ash  v.  Put- 
nam, 1  Hill,  302;  Sturtevant  v.  Orser,  24  N.  Y.  538;  Cox  v.  Burns,  1  Iowa, 
64;   Mason  v.  Wilson,  43  Ark.  172. 

94  Smith  v.  Goss,  1  Camp.  282;  Ex  parte  Watson,  5  Ch.  Div.  35;  Ex  parte 
Rosevear  China  Clay  Co.,  11  Ch,  Div.  560;  Bethell  v.  Clark,  19  Q.  B.  Div. 
553,  affirmed  20  Q.  B.  Div.  615;  Covell  v.  Hitchcock,  23  Wend.  611;  Harris 
V.  Pratt,  17  N.  Y.  249;  Cabeen  v.  Campbell,  30  Pa.  St.  254;  Aguirre  v. 
Parmelee,  22  Conn.  473;  White  v.  Mitchell,  38  Mich.  390;  Blackman  v. 
Pierce,  23  Cal.  509;  Blackb.  Sales,  353;  Chalm.  Sale,  64. 


222  RIGHTS    or   UNPAID    SELLER    AGAINST    THE    GOODS.  [Cll.   9 

are  still  in  transit,  even  though  the  person  in  possession  may  be 
the  general  agent  of  the  buyer  for  selling  as  well  as  for  forwarding 
the  goods.  But  if  the  goods  are  once  deposited  with  one  who  holds 
them  as  agent  of  the  buyer,  subject  to  his  further  ordei-s,  they  are 
no  longer  in  transit^"  In  each  case  the  question  is:  "Has  the  per- 
son who  has  the  custody  of  the  goods  got  possession  as  an  agent 
to  forward  from  the  vendor  to  the  buyer,  or  as  an  agent  to  hold  for 
the  buyer."  ®^  It  is  often  impossible  to  reconcile  the  decisions  in 
cases  arising  upon  substantially  similar  facts.  The  difficulty  lies, 
not  in  the  statement,  but  in  the  application,  of  the  principles. 

Same — Attornment  of  Carrier. 

When  the  goods  have  reached  their  appointed  destination,  the 
transitus  may  be  terminated  by  a  constructive  as  well  as  by  an 
actual  delivery  of  possession  to  the  buyer.  Unless  there  be  a  de- 
livery of  actual  possession,  something  must  occur  to  change  the 
actual  possession  of  the  carrier  into  the  constructive  possession  of 
the  buyer;  in  other  words,  the  carrier  must  attorn.  As  in  other 
cases,  the  attornment  must  be  founded  on  mutual  assent."^  If  the 
carrier  does  not  consent  to  hold  the  goods  as  bailee  for  the  buyer,** 
or  if  the  buyer  does  not  assent  to  his  so  holding  them,**  there  is  no 
Mttoinment. 

The  carrier's  change  of  character  into  that  of  warehouseman  or 
bailee  for  the  buyer  is  not  necessarily  inconsistent  with  his  main- 

9R  Dixon  V.  Baldwen,  5  East,  175;  Valpy  v.  Gibson,  4  C.  B.  8,37;  Ex  parte 
Gibbes,  1  Ch.  Div.  101;  Kendal  v.  Marshall,  11  Q.  B.  Div.  .356;  Ex  parte 
Miles.  15  Q.  B.  Div.  39,  54  Law  J.  Q.  B.  507;  Guilford  v.  Smith,  30  Vt  49; 
Becker  v.  Hallgarten,  8G  N.  Y.  167;  Rowley  v.  Bigelow,  12  Pick.  307,  313; 
Biggs  V.  Barry,  2  Curt.  259,  Fed.  Gas.  No.  1,402;  Brooke  Iron  Co.  v.  O'Brien, 
135  Mass.  442,  447. 

fl«  Blackb.  Sales,  353. 

97  James  v.  Griffin,  2  Mees.  &  W.  623;  Ex  parte  Cooper,  11  Ch.  Div.  68; 
Kemp  V.  Falk,  7  App.  Cas.  573,  per  Lord  Blackburn;  Hall  v.  Dimond.  63 
N.  H.  565,  3  Atl.  423;  McFetridge  v.  Piper,  40  Iowa,  627;  Harding  Paper 
Co.  V.  Allen.  65  Wis.  576.  27  N.  W.  329;  Laugstaff  v.  Stix,  64  Miss.  171,  1 
South.  97;   Williams  v.  Hodges,  113  N.  C.  38,  18  S.  E.  83;   Blackb.  Sales,  364. 

8  8  Whitehead  v.  Anderson,  9  Mees.  &  W.  518;  Coventry  v.  Gladstone,  L. 
R.  6  Eq.  44. 

89  Ex  parte  Barrow,  6  Ch.  Div.  783;  O'lSeil  v.  Garrett,  6  Iowa,  479. 


Ch.  9]  STOrPAGE   IN   TRANSITU.  223 

tenance  of  his  carrier's  lien; '""  but  the  continuance  of  the  Hen,  and 
the  fact  that  his  charges  are  unpaid,  is  strong,  though  not  con- 
elusive,  evidence  that  he  is  still  in  possession  as  carrier.^*** 
Wrongful  Refusal  to  Deluer. 

Since  the  buyer  has  the  right  of  possession  subject  only  to  the 
right  of  stoppage  in  transitu,  if  the  buyer  is  solvent  or  the  seller 
has  failed  to  exercise  his  right  of  stoppage  the  buyer's  right  of 
possession  is  not  affected  by  the  refusal  of  the  carrier  to  deliver; 
and,  if  the  carrier  wrongfully  refuses  possession,  the  right  of  stop- 
page is  gone.^"' 
W^auer. 

Since  the  right  of  stoppage  in  transitu  arises  by  implication  of 
law,  the  seller  may  waive  it,  expressly  or  by  implication.^"* 
How  the  Right  may  he  Defeated. 

The  seller  may  stop  in  transit  notwithstanding  that  he  has  de- 
livered to  the  buyer  a  bill  of  lading  by  which  the  goods  are  de- 
liverable to  his  order.  But  if  the  buyer  transfers  the  bill  of  lading 
to  a  bona  fide  purchaser  for  value,  and  in  such  case  only,  the  right 
of  stoppage  is  defeated.^"*  It  must  be  borne  in  mind,  however,  that 
a  bill  of  lading  is  not  like  a  bill  of  exchange,  and  that  the  trans- 
feree obtains  no  greater  rights  under  the  instrument  than  his  trans- 
ferer possessed.  The  bill  of  lading  represents  the  goods,  and  the 
transfer  of  the  instrument  operates  simply  as  a  delivery  of  the  goods. 
Therefore  the  transfer  by  one  who  has  no  title  to  the  goods  con- 
veys none  to  the  transferee,  and  a  transfer  of  the  bill  of  lading  by 
way  of  pledge  by  one  who,  like  a  factor,  has  no  authority  to  pledge 
confers  no  greater  rights  than  would  the  pledge  of  the  goods  them- 
selves by  an  agent  acting  without  authority.^"" 

100  Allan  v.  Gripper,  2  Cromp.  &  J.  218;  Hall  v.  Dimond,  G3  N.  H.  565,  3 
Atl.  423. 

101  Kemp  v.  Fa  Ik,  7  App.  Gas.  573,  per  Lord  Blackburn.  Where  the  cap- 
tain promised  to  deliver,  when  satisfied  as  to  freight,  it  was  held  the  transit 
was  not  ended.    Whitehead  v.  Anderson,  9  Mees.  &  W.  518. 

10  2  Bird   v.   Brown,  4  Exch.   786. 
108  Ante,  p.  207;  Ghalm.  Sale,  §  47  (8). 

104  Lickbarrow  v.  Mason,  2  Term  R.  63.  1  H.  Bl.  "57,  2  H.  Bl.  211,  6  East 
20,  note,  5  Term  R.  683,  1  Smith  Lead.  Gas.  (Ed.  1887)  737,  and  notes. 
106  LickbaiTow  v.  Mason,   1  Smith,  Lead.  Gas.   (Ed.   1887)  737,  notes.    In 


224  RIGHTS    OF    UNPAID    SELLER    AGAINST    THE    GOODS.  [Ch.    9 

To  entitle  the  transferee  to  liold  the  goods  free  from  the  right 
of  stoppage  in  transitu,  he  must  take  without  notice;  not,  indeed, 
without  notice  that  the  goods  have  not  been  paid  for,  since  that 
would  not  affect  the  buyer's  right  to  sell,  but  without  notice  of  the 
buyer's  insolvency,^"'  or  of  any  other  circumstance  which  would 
render  the  bill  of  lading  not  fairly  and  honestly  assignable.'"  The 
transfer  must  be  for  value,  but  an  antecedent  debt  is  sufficient.^"' 
The  purchaser  will,  however,  take  subject  to  the  right  of  stop- 
page, unless  he  actually  gets  a  transfer  of  the  bill  of  lading.^"^ 

The  right  of  stoppage  may  be  defeated  in  part  by  a  transfer  of 
the  bill  of  lading  by  way  of  pledge  or  mortgage.  In  such  case,  the 
buyer  still  retains  the  general  property,  and  the  seller  may  in  equity 
exercise  his  right  of  stoppage  subject  to  the  incumbrance;  and  he 
may  also  compel  the  incumbrancer  to  exhaust  any  other  securities 
he  may  hold  in  satisfaction  of  his  claim  before  proceeding  on  the 
goods  represented  by  the  bill  of  lading.^^" 

some  states  bills  of  lading  are  by  statute  made  negotiable,  like  bills  of  ex- 
change and  promissory  notes. 

lOG  Yertue  v.  Jewell,  4  Camp.  31,  per  Lord  Ellenbo rough;  Stanton  v.  Eagor, 
16  Pick.  4G7,  476;  Loeb  v.  Peters,  63  Ala.  243.  A  transfer  of  the  bill  of  lading, 
after  notice  of  stoppage  has  been  served  on  the  carrier,  to  a  purchaser  for 
value,  without  notice  of  the  stoppage  or  of  the  insolvency,  defeats  the  seller's 
right.    Newhall  v.  Central  P.  R.  Co.,  51  Cal.  845. 

107  Cuming  v.  Brown,  9  East,  50G;    Salomons  v.  Nissen,  2  Term  R.  681. 

108  Leask  v.  Scott,  2  Q.  B.  Div.  376,  dissenting  from  Rodger  v.  Comptoir 
d'Escompte,  L.  R.  2  P.  C.  3Do;  St.  Paul  Roller-Mill  Co.  v.  Great  Western 
Di.spatch  Co.,  27  Fed.  434;  Lee  v.  Kimball,  45  .Me.  172.  See,  also,  Clemeutson 
v.  Grand  Trunk  Ry.  Co.,  42  U.  C.  Q.  B.  263.  But  it  has  been  hold  that  a 
transfer  of  the  bill  of  lading,  as  mere  collateral  to  previous  obligations,  does 
not  defeat  the  seller's  right.  Lesassier  v.  The  Southwestern,  2  Woods.  35, 
Fed.  Cas.  No.  8.274;   Loeb  v.  Peters.  63  Ala.  243. 

109  Kemp  V.  Falk,  7  App.  Cas;  573,  per  Lord  Blackburn;  Walter  v.  Ross, 
2  Wash.  283,  Fed.  Cas.  No.  17,122;  Stanton  v.  Eager,  16  Pick.  467,  476;  Pat- 
tison  V.  Culton.  33  Ind.  240;  Clapp  v.  Sohmer,  55  Iowa,  273,  7  N.  W.  639. 
The  transfer  of  a  "duplicate"  bill  of  lading  does  not  defeat  the  right  of  stop- 
page. Castanola  v.  Missouri  Pac.  R.  Co.,  24  Fed.  267.  But  see  note  to  that 
case  by  Adelbert  Hamilton,  citing  Caldwell  v.  Ball,  1  Term  R.  205;  Meyer- 
stein  V.  Barber,  L.  R.  2  C.  P.  38,  661,  L.  R.  4  H.  L.  317;  Glyn  v.  East  &  W. 
L  Dock  Co.,  7  App.  Cas.  591,  affirming  6  Q.  B.  Div.  475,  reversing  5  Q.  B.  Uiv. 
129;   Benj.  Sales,  §  861. 

110  In  re  Westzinthus,  5  Barn.  &  Adol.  817;    Spalding  v.  Ruding,  6  Beav. 


Ch.   9]  STOPPAGE    IN    TRANSITU.  225 

Whether,  when  the  bill  of  lading  has  been  transferred  by  the  buyer 
to  a  subpurchaser  for  value,  but  the  purchase  money  is  wholly  or  in 
part  unpaid  by  the  subpurchaser,  the  seller  may  stop  to  the  extent 
of  such  unpaid  purchase  money,  is  a  question  not  free  from  doubt^" 
Hoxo  Stoppage  in  Transitu  is  Ejected. 

It  has  been  said  that  the  vendor  is  so  much  favored  in  exercising 
his  right  as  to  be  justified  in  getting  the  goods  back  by  any  mean&' 
not  criminal  before  they  reach  the  possession  of  the  insolvent  ven 
jjggiia     "The  law  is  clearly  settled,"  says  Parke,  B.,  "that  the  un 
paid  vendor  has  a  right  to  retake  the  goods  before  they  have  ar 
rived  at  the  destination  originally  contemplated  by  the  purchaser,, 
unless  in  the  meantime  they  have  come  into  the  actual  or  construct- 
ive possession  of  the  vendee.''  ^^' 

Any  notice  clearly  countermanding  delivery  is  enough.  Such 
notice  may  be  given  to  the  person  in  actual  possession  of  the  goods 
or  to  his  principal  or  employer.^^*     But,  if  the  notice  be  to  a  pria- 

376,  12  Law  J.  Ch.  503,  affirmed  15  Law  J.  Ch.  374;  Berndtson  v.  Strang,  L. 
R.  4  Eq.  481,  affirmed  3  Ch.  App.  588;  Kemp  v.  Falk,  7  App.  Cas.  573.  But 
If  the  goods  come  into  the  hands  of  pledgees  of  the  buyer,  holding  them  under 
his  title  and  setting  up  a  possession  adverse  to  that  of  the  seller  with  the 
buyer's  assent,  at  a  place  where  the  seller  contemplated  and  agreed  it 
shcnM  be  done,  the  transit  is  at  an  end,  and  the  principle  of  Spalding  v. 
Rudiog  does  not  apply.    Brooke  Iron  Co.  v.  O'Brien,  135  Mass.  442,  447. 

111  The  affirmative  was  substantially  held  in  Ex  parte  Golding,  18  Ch. 
DIv.  628,  which  was  followed  in  Ex  parte  Falk,  14  Ch.  Div.  446.  The  latter 
case  was  aflSrmeci,  but  on  a  different  ground  (7  App.  Cas.  573),  where  Lord 
Selbourne  doubted  the  rule,  and  said:  "I  assent  entirely  to  the  proposition 
that,  where  the  subpurchasers  get  a  good  title  as  against  the  right  of  stop- 
page in  transitu,  there  can  be  no  stoppage  in  transitu  as  against  the  purchase 
money  payable  by  them  to  their  vendor."  See  Benj.  Sales,  §  865a;  Chalm. 
Sale.  72. 

112  Snee  v.  Prescot,  1  Atk.  245,  2.50,  per  Lord  Hardwicke. 
118  Whitehead  v.  Anderson,  9  Mees.  &  W.  518. 

11*  Litt  V.  Cowley,  7  Taunt.  169;  Reynolds  v.  Boston  &  M.  R.  R.,  43  N.  H. 
580;  Newhall  v.  Vargas,  13  Me.  93;  Jones  v.  Earl,  37  Cal.  630;  Rucker  v. 
Donovan,  13  Kan.  252.  The  notice  need  not  state  the  reason.  Allen  v. 
Maine  Cent.  R.  Co.,  79  Me.  327,  9  Atl.  895.  The  seller  may  exercise  hi» 
right  by  demanding  the  bills  of  lading  from  the  shipowner  who  has  re- 
tained them  as  security.  Ex  parte  Watson,  5  Ch.  Div.  35.  But  a  notice  to 
hold  the  proceeds  of  the  goods  is  ineffectual.  Phelps  v.  Comber,  29  Ch.  Div. 
813. 

SALES— 15 


226  RIGHTS    OF   UNPAID   SELLER    AGAINST   THE    GOODS.  [Ch.   9 

c'ipal  not  in  actual  possession,  the  notice,  to  be  effectual,  must  be 
given  at  such  time  and  under  such  circumstances  that  the  principal, 
in  the  exercise  of  reasonable  diligence,  can  communicate  with  his 
servant  or  agent  in  time  to  prevent  delivery  to  the  buyer;  but  if 
the  principal  receives  notice  he  is  bound  to  use  reasonable  diligence 
in  forwarding  the  notice  to  the  proper  agent,  and  if  he  does  so  he 
will  be  excused  if  the  goods  are  delivered  before  the  arrival  of  the 
notice.^  ^" 

The  seller  exercises  his  right  of  stoppage  at  his  peril.  When  no- 
tice of  stoppage  is  lawfully  given  to  the  carrier,  the  latter  must 
redeliver  the  goods  according  to  the  directions  of  the  seller.^^'  In 
case  of  real  doubt,  the  carrier  must  deliver  at  his  peril  or  resort  to 
an  interpleader.^ ^^ 
Effect  of  Stoppage  in  Transitu. 

The  effect  of  exercising  the  right  is  simply  to  restore  the  goods 
into  the  possession  of  the  seller,  so  as  to  enable  him  to  exercise  his 
rights  as  unpaid  seller,  and  not  to  rescind  the  sale.  He  is  replaced 
in  the  position  he  was  in  before  he  parted  with  the  possession.^ ^® 

RIGHT  OF  RESALE. 

122.  The  unpaid  seller,  who  has  exercised  his  right  of 
lien  or  of  stoppage  in  transitu,  may,  upon  the  failure  of 

11 B  Whitehead  v.  Anderson,  9  Mees.  &  W.  518;  Kemp  v.  Falk,  7  App.  Cas. 
:573,  585,  per  Lord  Blackburn;  Mottram  v.  Heyer,  5  Denio,  629.  But  see  Ex 
parte  Falk,  14  Ch.  Div.  446,  455,  per  Bramwell,  L.  J. 

116  The  Tigress,  32  Law  J.  P.  M.  &  Adm.  97;  The  E.  H.  Pray,  27  Fed.  474; 
The  Vidette,  34  Fed.  396;  Jones  v.  Earl,  37  Cal.  630;  Allen  v.  Maine  Cent. 
R.  Co.,  79  Me.  327,  9  Atl.  895. 

iiT  Glyn  V.  East  &  W.  I.  Dock  Co.,  7  App.  Cas.  591,  per  Lord  Blackburn; 
The  Tigress,  32  Law  J.  P.  M.  &  Adm.  97,  102;   Benj.  Sales,  §  861. 

lis  Martindale  v.  Smith,  1  Q.  B.  389;  Wentworth  v.  Outhwaite,  10  Mees. 
&  W.  436;  Schotsmans  v.  Lancashire  &  Y.  Ry.  Co.,- 2  Ch.  App.  332,  340,  per 
Lord  Cairns;  Kemp  v.  Falk,  7  App.  Cas.  573,  581,  per  Lord  Blackburn; 
Babcock  V.  Bonnell,  80  N.  Y.  244;  Rowley  v.  Bigelow,  12  Pick.  307,  312; 
Newhall  v.  Vargas,  15  Me.  314;  Patten's  Appeal,  45  Pa.  St.  151;  Pennsyl- 
vania R.  Co.  V.  American  Oil  Works,  126  Pa.  St  485,  17  Atl.  671;  Diem  v. 
Koblitz,  49  Ohio  St  41,  29  N.  E.  1124;  Bloomingdale  v.  Memphis  •&  C.  R. 
Co.,  6  Lea,  616;   Rucker  v.  Donovan.  13  Kan.  251. 


Ch.   9]  RIGHT   OF    RESALE.  227 

the  buyer  to  pay  the  price,  resell  the  goods,  acting  as  agent 
of  the  buyer,  and  recover  from  him  the  difference  between 
the  contract  price  and  the  proceeds  of  the  resale. 

In  England. 

In  England  the  exact  extent  of  the  right  of  the  unpaid  seller  in 
possession  of  the  goods  to  resell  them  upon  the  buyer's  default  ap- 
pears not  to  be  entirely  free  from  doubt.  He  may  resell  and  give  a 
good  title  to  the  buyer  as  against  the  original  purchaser.^^"  And 
if  he  resells  he  may  recover  from  the  original  purchaser  as  damages 
the  actual  loss  on  the  resale;  ^'°  and  the  buyer  cannot  maintain 
trover  against  him,  being  deprived  by  his  default  of  that  right  of 
possession  without  which  trover  will  not  lie.^^^  But  it  is  said  by 
Benjamin  "^  that  such  resale,  even  on  the  buyer's  default,  is  a  breach 
of  contract  for  which  damages  may  be  recovered  against  him,  though 
only  the  actual  damages  suffered, — that  is,  the  difference  between 
the  contract  price  and  the  market  value  on  the  resale;  and  that,  if 
there  be  no  proof  of  such  difference,  the  recovery  will  be  for 
nominal  damages  only. 
In  United  States. 

In  this  country  the  right  of  resale  is  universally  recognized  and 
clearly  defined.  In  making  the  resale  the  seller  acts  as  the  agent  of 
the  buyer,  and,  if  the  goods  sell  for  less  than  the  contract  price,  the 
seller  may  recover  the  difference,  together  with  the  expenses  of  sale, 
in  an  action  against  the  buyer.^^^     It  must  appear  that  the  sale  was 

118  Milgate  v.  Kebble,  3  Man.  &  G.  100.    Cf.  Lord  v.  Price,  L.  R.  9  Exch.  54. 

120  Maclean  v.  Dunn,  4  Bing.  722. 

121  Milgate  v.  Kebble,  3  Man.  &  G.  100;   Lord  v.  Price,  L.  R.  9  Exch.  54. 

122  Benj.  Sales,  §  794,  citing  Valpy  v.  Oakeley,  16  Q.  B.  941,  20  Law  J. 
Q.  B.  3S0;  Griffiths  v.  Perry,  1  El.  &  El.  680,  28  Law  J.  Q.  B.  204.  And 
see  Benj.  Sales,  §§  782-795,  for  a  discussion  of  the  English  cases.  "AVhere 
the  goods  are  of  a  perishable  nature,  or  where  the  unpaid  seller  gives  notice 
of  his  intention  to  resell,  and  the  buyer  does  not  within  a  reasonable  time 
pay  or  tender  the  price,  the  unpaid  seller  may  resell  the  goods,  and  recover 
from  the  original  buyer  damages  for  any  loss  occasioned  by  his  breach  of 
contract."  Chalm.  Sale,  §  50  (3),  citing  Page  v.  Eduljee,  L.  R.  1  P.  C,  at 
page  145;  Lord  v.  Price,  supra;  Ex  parte  Stapleton,  10  Ch.  Div.  58G;  Mac- 
lean V.  Dunn,  supra. 

123  Sands  v.  Taylor,  5  .Tohns.  395;  Dustan  v.  McAndrew,  44  N.  Y.  73; 
Sawyer  v.  Dean,  114  N.  Y.  469,  21  N.  B.  1012;    Whitney  v.  Boardman,  118 


228  RIGHTS    OF   UNPAID   SELLER    AGAINST   THE    GOODS.  [Cll.   ^ 

TN'illiin  a  reasonable  time/"  and  that  it  was  fairly  conducted,^" 
or  else  the  seller  can  only  recover  the  difference  between  the  con- 
tract price  and  the  amount  which  the  goods  would  have  realized 
upon  a  proper  sale."'  Whether  the  sale  should  be  private  or  by 
auction  would  depend  on  what  was  the  customary  manner  of  sell- 
ing the  commodity  in  question  and  the  manner  most  likely  to  pro- 
duce the  best  price."^  Notice  of  intention  to  exercise  the  right 
of  sale  should  be  given,  though  cases  may  arise  where,  owing  to  the 

Mass.  242;  Phelps  v.  Hubbard,  51  Vt.  489;  Atwood  v.  Lucas,  53  Me.  508; 
Young  V.  Mertens,  27  Md.  114;  Bell  v.  Offutt,  10  Bush.  632;  Bagley  v.  Find- 
lay,  S2  111.  524;  Iloebliug's  Sons'  Co.  v.  Lock-Stitch  Fence  Co.,  130  111.  660, 
22  N.  E.  518;  Van  Horn  v.  Rucker,  33  Mo.  391.  Some  cases  hold  that  the 
amount  obtained  on  resale  is  only  evidence  of  the  value,  and  not  necessarily 
conclusive  against  the  buyer.  Girard  v.  Taggart,  5  Serg.  &  R.  19;  Andrews 
V.  Hoover,  8  Watts,  239;  McCombs  v.  McKennan,  2  Watts  &  S.  216.  This 
is  Inconsistent  with  the  theoiy  that  the  seller  resells  as  the  buyer's  agent, 
which  would  only  require  good  faith  and  reasonable  diligence.  In  these 
cases  it  seems  tliat  the  property  had  passed  to  the  buyer,  and  they  are 
therefore  to  be  distinguished  from  those  in  which  the  property  has  not 
passed,  and  the  resale  is  resorted  to  simply  as  a  means  of  determining  the 
market  value  for  the  purijose  of  establishing  the  amount  of  the  seller's  dam- 
ages. See  Chapman  v.  Ingram,  30  Wis.  295;  Ricky  v.  Tenbroeck,  63  Mo. 
563;  Black  River  Lumber  Co.  v.  Warner,  93  Mo.  374,  386,  6  S.  W.  210;  Has- 
kell V.  McHenry,  4  Cal.  411.  Upon  default  of  a  purchaser  of  an  undivided 
Interest  in  a  partnership,  the  vendor  may  resell  and  recover  the  deficiency 
from  the  first  purchaser.    Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  35  N.  E.  415. 

124  Smith  v.  Pettee,  70  N,  Y.  13;  Camp  v.  Hamlin,  55  Ga.  259.  See  Rosen- 
baums  v.  Weeden,  18  Grat.  785. 

12B  Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  75,  35  N.  E.  415;  Camp  v. 
Hamlin,  55  Ga.  259;  Brownlee  v.  Bolton,  44  Mich.  218,  6  N.  W.  657;  Saladin 
V.  Mitchell,  45  lU.  79;  Penn  v.  Smith,  98  Ala.  560,  12  South.  818.  A  sale 
elsewhere  than  at  the  place  of  delivery  is  good,  if  made  in  good  faith,  and 
In  the  exercise  of  a  reasonable  discretion.  Lewis  v.  Greider,  51  N.  Y.  231- 
Sawyer  v.  Dean,  114  N.  Y.  469,  481,  21  N.  E.  1012.  But  see  Chapman  v. 
Ingi-am,  30  Wis.  290;  Ricky  v.  xenbroeck,  63  Mo.  563.  The  buyer  cannot 
complain  that  the  goods  are  bought  in  the  name  of  a  third  person  for  the 
seller,  if  the  full  market  price  is  obtained.  Lindon  v.  Eldred,  49  Wis.  305, 
5  N.  W.  862.  It  seems  that  the  seller  should  follow  any  i-easonable  instruc- 
tions as  to  the  time  and  manner  of  sale  which  he  can  follow  without 
sacrificing  his  lien.    Smith  v.  Pettee,  70  N.  Y.  13,  18. 

126  Pickering  v.  Bardwell,  21  Wis.  563. 

127  Pollen  V.  Le  Roy,  30  N.  Y.  549;  Van  Brocklen  v.  Smeallie.  140  N.  Y. 
70,  35  N.  E.  415;   Whitney  v.  Boanluiau,  118  Mass.  242,  248. 


Ch.   9]  RIGHT    OF    RESALE.  229 

perishable  character  of  the  goods,  or  other  circumstances,  notice 
might  be  dispensed  with.^'*     Notice  of  the  time  and  place  of  sale, 
however,  is  not  essential.^" 
Choice  of  Remedies — Right  to  Rescind. 

It  is  held  in  England  that  the  seller  has  no  right  to  rescind  the 
sale  because  the  hujev  is  in  default  for  the  price,^*"^  his  choice  of 
remedies,  except  for  the  right  of  lien,  being  either  to  sue  for  the 
price  or  to  i^esell.  In  some  cases  in  this  country,  it  is  said  that  the 
seller  has  a  third  remedy.  "The  vendor  of  personal  property,"  says 
the  court,  in  the  leading  case  of  Dustan  v.  McAndrew,^"  "in  a  suit 
against  the  vendee  for  not  taking  and  paying  for  the  property,  has 
the  choice  ordinarily  of  one  of  three  remedies:  (1)  He  may  store 
or  retain  the  property  for  the  vendee,  and  sue  him  for  the  entire 
price:  (2)  he  may  sell  the  property,  acting  as  the  agent  for  this 
purpose  of  the  vendee,  and  recover  the  difference  between  the  con- 
tract price  and  the  price  of  resale;  or  (3)  he  may  keep  the  property 
as  his  OWE,  and  recover  the  difference  between  the  market  price 
at  the  time  and  place  of  delivery  and  the  contract  price."  Sub- 
stantially the  same  statement  of  the  law  has  been  made  in  other 
cases.^^*  While  the  first  and  second  of  these  remedies  is  exercised 
in  affirmance  of  the  contract,  the  latter  since  it  permits  the  seller 
to  keep  the  goods  as  his  own  notwithstanding  that  the  property 
had  passed,  must  rest  on  the  theory  of  rescission,  although  the  seller 
is  inconsistently  allowed  to  maintain  an  action  on  the  contract  for 

128  Holland  v.  Rea,  48  Mich.  218,  224,  12  N.  W.  167;  McOlure  v.  Williams, 
5  Sneed,  717;   Saladin  v.  Mitchell,  45  111.  79;   Redmond  v.  Smock,  28  Ind.  365. 

129  Pollen  V.  Le  Roy,  30  N.  Y.  549;  Holland  v.  Rea,  48  Mich.  218,  12  N.  W. 
167;  Ullmann  v.  Kent,  60  111.  271.  It  is  not  "essential  that  notice  of  the 
time  and  pJace  of  sale  should  be  given  to  the  vendee.  Still  as  the  sale  must 
be  fair,  and  such  as  is  most  likely  to  produce  most  nearly  the  full  and  fair 
value  of  the  article,  it  is  always  wisest  for  the  vendor  to  give  notice  of  his 
Intention  to  resell,  and  quite  unsafe  to  omit  it."  Van  Brocklen  v.  Smeallie, 
140  N.  Y.  70,  75,  35  N.  B.  415,  per  Finch,"  J. 

180  Post,  p.  234. 

131  44  N.  Y.  73. 

182  Hayden  v.  Demets,  53  N.  Y.  426;  Mason  v.  Decker,  72  N.  Y.  595;  Van 
Brocklen  v.  Smeallie,  140  N,  Y.  70,  35  N.  E.  415;  Ba'rr  v.  Logan,  5  Har. 
(Del.)  52;  Young  v.  Mertens,  27  Md.  114,  126;  Cook  v.  Brandeis,  3  Mete. 
(Ky.)  555;  Bagley  v.  Findlay.  82  111.  .524;  Ames  v.  Moir,  130  IlL  582,  22  N. 
B.  535.    See,  also,  Putnam  v.  Glidden,  159  Mass.  47,  34  N.  E.  81. 


230  RIGHTS    OF    UNPAID    SELLER    AGAINST    THE   GOODS.  [Ch.   9 

the  difference  between  the  market  value  of  the  goods  and  the 
price.  The  exercise  of  the  third  remedy  was  not  involved  in  any 
of  the  cases  cited.  It  would  seem,  on  principle,  that  the  only  case 
in  which  the  seller  may  keep  the  goods,  and  sue  for  the  difference 
between  the  contract  price  and  the  value  of  the  goods,  is  where 
the  property  has  not  passed.^** 

18  8  See  Ganson  v.  Madigan,  15  Wis.  144,  151. 


Gh.   10]  REMEDIES    OF   SELLER.  231 

CHAPTER   X. 

ACTION  FOR  BREACH  OF  THE  CONTRACT. 

123-124.  Remedies  of  Seller— Where  Property  has  not  Passed. 
125.  Measure  of  Damages  for  Nonacceotance. 

12G.  Where  Property  has  Passed. 

127.  Remedies  of  the  Buyer— Action  for  Nondelivery, 

128.  Measure  of  Damages. 

129.  Specific  Performance. 

130.  Action  for  Conversion. 

131.  Breach  of  Warranty  of  Quality— Right  to  Reject 

132.  Rights  after  Acceptance. 

133.  Measure  of  Damages  for  Breach  of  Warranty. 

REMEDIES  OF  SELLER— WHERE  PROPERTY  HAS  NOT 

PASSED. 

123.  If  the  buyer  wrongfully  neglects  or  refuses  to 
accept  and  pay  for  the  goods,  the  seller  may  maintain  an 
action  against  him  for  damages  for  nonacceptance. 

124.  Where  the  price  is  payable  on  a  day  certain  irre- 
spective of  delivery,  and  the  buyer  wrongfully  neglects 
or  refuses  to  pay  such  price,  the  seller  may  maintain  an 
action  for  the  price,  although  the  property  in  the  goods 
has  not  passed. 

125.  MEASURE  OF  DAMAGES  FOR  NONACCEPT- 
ANCE. The  measure  of  damages  for  nonacceptance  is  the 
estimated  loss  directly  and  naturally  resulting  from  the 
breach  of  contract  in  the  natural  course  of  events,  and, 
w^hen  there  is  an  available  market  for  the  goods,  is  prima 
facie  to  be  ascertained  by  the  difference  betw^een  the  con- 
tract price  and  the  market  price  at  the  agreed  time  and 
place  of  delivery. 

When  the  property  in  the  goods  has  not  passed,  as  where  the 
contract  is  for  the  sale  of  unascertained  goods  or  of  goods  which 
are  not  in  a  deliverable  state,  the  buyer's  breach  of  his  promise 


232  ACTION    FOR    BREACH    OF    THE    CONTRACT.  [Ch.   10 

to  accept  and  pay  for  them  can  only  affect  the  seller  by  way  of  dam- 
ages. The  goods  are  still  his.  He  may  resell  them  or  not,  at  his 
pleasure.  His  only  remedy,  therefore,  is  an  action  against  the 
buyer  for  nonaceeptance.^  To  this  general  rule  there  is  only  the 
one  exception,  which  has  been  above  stated,  that,  if  by  the  terms 
of  the  contract  the  price  is  payable  irrespective  of  delivery,  the 
seller  may  sue  for  the  price  at  the  time  agreed  upon,  leaving  the 
buyer  to  his  cross  action  in  case  the  seller,  after  receiving  the  price, 
should  fail  to  deliver  the  goods." 
Damages  for  Nonacceptance. 

The  proper  measure  of  damages  for  nonacceptance  Is  generally 
the  difference  between  the  contract  price  and  the  market  price  at 
the  place  of  delivery  at  the  time  when  the  contract  is  broken,  be- 
cause the  seller  may  take  his  goods  into  the  market,  and  obtain  the 
current  price  for  them.'  If  the  goods  have  no  market  price,  the 
damages  must,  of  course,  be  otherwise  ascertained;*  and  if  they 
have  no  money  value  the  measure  of  damages  would  be  equal 
to  the  whole  contract  price."  The  date  at  which  the  contract  is 
deemed  to  be  broken  is  that  fixed  by  the  contract  for  the  delivery, 
and  not  that  at  which  the  buyer  may  give  notice  that  he  intends 
to  break  the  contract  and  refuse  accepting  the  goods.'      If  the 

1  Laird  v.  Pim,  7  Mees.  &  W.  474,  478;  Collins  v.  Delaporte,  115  Mass. 
159,  162;  Gordon  v.  Norris,  49  N.  H.  376;  Dan  forth  v.  Walker,  37  Vt.  239; 
Atwood  V.  Lucas,  53  Me.  508;  Brand  v.  Henderson,  107  111.  141;  Ganson 
V.  Madigan,  13  Wis.  68;  Chapman  v.  Ingram,  30  Wis.  290,  294;  Peters  v. 
Cooper,  95  Mich.  191,  54  N.  W.  694;    Benj.  Sales,  §  758. 

2  Dunlop  V.  Grote,  2  Car.  &  K.  153. 

»  Barrow  v.  Arnaud,  8  Q.  B.  595,  608,  per  Tindal,  C.  J. 

*  Chicago  V.  Greer,  9  Wall.  726;  McCormick  v.  Hamilton,  23  Grat.  561. 
Where  there  was  no  market,  the  proper  measure  of  damages  was  the  actual 
loss  which  the  sellers,  acting  as  reasonable  men  in  the  ordinary  course  of 
busine.ss,  had  sustained.    Dunkirk  Colliery  Co.  v.  Lever,  9  Ch.  Div.  20,  25. 

8  Allen  V.  Jarvis,  20  Conn.  38.    CL  Chicago  v.  Greer,  9  Wall.  726. 

«  Boorman  v.  Nash,  9  Barn.  «&  C.  145;  Phillpotts  v.  Evans,  5  Mees.  &  W. 
475;  Thompson  v.  Alger,  12  Mete.  (Mass.)  428,  443;  Schramm  v.  Boston 
Sugar-Refining  Co.,  140  Mass.  211,  15  N.  E.  571;  Gordon  v.  Norris,  49  N.  H. 
876;  Girard  v.  Taggart,  5  Serg.  &  R.  19;  Dana  v.  Fiedler,  12  N.  Y.  40;  Camp 
T.  Hamlin,  55  Ga.  259;  Williams  v.  Jones,  1  Bush,  621;  Pittsburgh,  C.  & 
St.  L.  Ry.  Co.  V.  Heck,  50  Ind.  303;  Sanborn  v.  Benedict,  78  111.  309;  Kadish 
▼.  Young,  108  111.  170. 


Ch.  10]  REMEDIES   OF   SELLER.  233 

contract  is  for  the  sale  of  goods  to  be  manufactured,  or  otlierwise 
procured  by  the  seller,  and  the  buyer  refuses  to  accept  or  gives 
notice  that  he  intends  to  refuse  acceptance,  so  that  the  seller  is 
excused  from  procuring  and  tendering  the  goods,  he  will  be  en- 
titled to  such  damages  as  will  put  him  in  the  same  position  as  if 
he  had  been  permitted  to  complete  the  contract.^  Thus  where  the 
contract  was  for  the  sale  of  rails  to  be  rolled  by  the  seller,  "and  to 
be  drilled  as  he  may  be  directed,"  at  |58  per  ton,  and  the  buyer  re- 
fused to  give  directions  for  drilling,  and  at  his  request  the  seller 
delayed  rolling  until  after  the  time  prescribed  for  their  delivery, 
and  then  the  buj^er  advised  the  seller  that  he  should  decline  to  take 
any  of  the  rails  under  the  contract,  it  was  held  that  the  seller  was 
not  bound  to  roll  the  rails  and  tender  them,  and  that  the  proper 
rule  of  damages  was  the  difference  between  the  cost  per  ton  of  mak- 
ing and  delivering  the  rails  and  |58.* 

When  the  contract  is  for  the  sale  of  a  chattel  to  be  made  to 
order,  there  is,  as  we  have  seen,  a  conflict  of  authority  as  to  whether 
the  property  passes  on  completion,  or  whether  acceptance  by  the 
buyer  is  essential  to  the  appropriation ;  and  in  such  cases,  whether- 
an  action  can  be  maintained  for  the  price  or  whether  the  seller  is 
confined  to  an  action  for  damages  for  nonacceptance  will  depend  on 
the  rule  adopted  in  the  particular  jurisdictioit  as  to  what  is  neces- 
sary to  transfer  the  property.' 

SAME— WHERE  PROPERTY  HAS  PASSED. 

126.  Whore,  under  a  contract  of  sale,  the  property  in 
the  goods  has  passed  to  the  buyer,  and  he  -wrrongfuUy 
neglects  or  refuses  to  pay  for  them  according  to  the  terms 
of  the  contract,  the  seller  may  maintain  an  action  against 
him  for  the  price  of  the  goods/" 

1  Cort  v.  Ambergate  N.  &  B.  &  E.  J.  Ry.  Co.,  17  Q.  B.  127,  20  Law  J.  Q. 
B.  460;  Hinckley  v.  Pittsburgh  Bessemer  Steel  Co.,  121  U.  S.  264,  7  Sup. 
Ct  875;  Black  River  Lumber  Co.  v.  Warner,  93  Mo.  374,  6  S.  W.  210; 
Muskegon  Curtain-Roll  Co.  v.  Keystone  Manuf  g  Co.,  135  Pa.  St  132,  19  Atl. 
1008;  Hosmer  v.  Wilson,  7  Mich.  293;  Haskell  v.  Hunter,  23  Mich.  305;  But- 
ler V.  Butler,  77  N.  Y.  472;   ante,  p.  158. 

8  Hinckley  v.  Pittsburgh  Bessemer  Steel  Co.,  121  U.  S.  264,  7  Sup.  Ct.  875. 

»  Ante,  p.  103,  and  cases  cited  in  notes  32,  33. 

10  Chalm.  Sale,  §  51. 


234  ACTION    FOR    BREACH    OF    THE    CONTRACT.  [Ch.   10 

Wlien  the  property  in  the  goods  has  passed,  unless  the  sale  is  on 
credit  or  payniout  is  made  to  depend  on  some  contingency,  the 
seller  may  maintain  an  action  for  the  price.^^  He  may  recover 
the  price  under  the  common  indebitatus  counts:  When  the  contract 
has  been  completed  in  all  respects  except  delivery,  and  delivery  is 
not  a  condition  precedent  to  the  payment  of  the  price,  under  the 
count  for  goods  bargained  and  sold;  when  the  goods  have  been  de- 
livered, and  the  price  is  payable  at  the  time  of  action  brought,  under 
the  count  for  goods  sold  and  delivered.  If  the  sale  is  on  credit, 
he  must,  of  course,  await  the  termination  of  the  credit  before  bring- 
ing suit.^^  And  if  the  price  is  pa^^able  by  a  bill  or  other  security, 
and  the  security  is  not  given,  the  seller  cannot  sue  for  the  price 
until  the  bill  would  have  matured,  though  he  may  sue  at  once  for 
damages  for  breach  of  the  agreement,  in  which  case  the  measure  of 
his  damages  will  be  prima  facie  the  amount  of  the  sum  to  be  se- 
cured.^ ^ 

In  England  it  is  held  that  the  seller  is  not  entitled,  under  any 
circumstances,  to  rescind  the  contract  for  default  in  the  payment  of 
the  price;  ^*  but  in  this  country  it  has  been  frequently  declared  that 
the  unpaid  seller,  who  is  in  possession  of  the  goods,  has,  among 
other  remedies,  the  right  to  keep  the  goods  as  his  own,  and  recover 
the  difference  between  the  market  price  at  the  time  and  place  of 
delivery  and  the  contract  price. ^^ 

11  Scott  V.  England,  2  Dowl.  &  L.  520;  Stearns  v.  Washburn,  7  Gray,  187, 
189;  Morse  v.  Sherman,  106  Mass.  430;  Frazier  v.  Simmons,  139  Mass. 
531,  535,  2  N.  E.  112;  Haj'den  v.  Demets,  53  N.  Y,  426;  Doremus  v.  Howard, 
23  N.  J.  Law,  390;  Armstrong  v.  Tm-uer,  49  Md.  589;  Ganson  v.  Madigan, 
13  Wis.  67. 

12  Calcutta  &  B.  Steam  Nav.  Oo.  v.  De  Mattos,  32  Law  J.  Q.  B.  (N.  S.) 
at  page  328;  Keller  v.  Strasberger,  90  N.  Y.  379;  Dellone  v.  Hull,  47  Md. 
112.  Mere  insolvency  of  one  of  the  parties  is  not  equivalent  to  a  rescission 
or  a  breach.  It  simply  relieves  the  seller  from  his  agreement  to  give  credit. 
Pardee  v.  Kanady,  100  N.  Y.  121,  126,  2  N.  E.  885.  Cf.  New  England  Iron 
Co.  V.  Gilbert  Elevated  R.  Co.,  91  N.  Y.  153,  168. 

13  Paul  V.  Dod,  2  C.  B.  800;  Rinehait  v.  Olwine,  5  Watts  &  S.  157;  Hanna 
V.  Mills,  21  Wend.  90;  Barron  v.  Mullin,  21  Minn.  374.  But  see  Foster  v. 
Adams,  60  Vt.  392,  15  Atl.  169. 

14  Martindale  v.  Smith,  1  Q.  B.  389. 
16  Ante,  y.  229. 


Ch.    10]  REMEDIES    OF    THE   BUYER.  235 


REMEDIES    OF    THE    BUYER— ACTION  FOR  NONDELIVERY. 

127.  Where  the  seller  ■wrongfully  neglects  or  refuses  to 
deliver  the  goods  to  the  buyer,  the  buyer  may  maintain 
an  action  against  the  seller  for  damages  for  nondelivery. 

128.  MEASURE  OF  DAMAGES.  The  measure  of  dam- 
ages is  the  estimated  loss  directly  and  naturally  resulting 
from  the  seller's  breach  of  contract,  and,  -when  there  is  an 
available  market  for  the  goods  in  question,  is  prima  facie 
to  be  ascertained  by  the  difference  between  the  contract 
price  and  the  market  price  of  the  goods  at  the  agreed 
time  and  place  of  delivery. ^^ 

The  breach  of  contract  of  which  the  buyer  complains  may  arise 
from  the  seller's  default  in  delivering  the  goods,  or  from  some  defect 
in  the  goods  delivered.  There  may  be  a  breach  of  the  principal 
contract  for  the  transfer  of  the  property  and  the  delivery  of  posses- 
sion or  of  a  collateral  contract  of  warranty.  The  buyer's  reme- 
dies for  breach  of  the  contract  may  be  treated  in  the  order  of  time 
in  which  they  naturally  arise — First,  his  remedies  before  obtaining 
possession  of  the  goods,  which  may  be  subdivided  into  the  cases 
where  the  contract  is  executory  and  the  cases  where  the  property 
has  passed;  and,  second,  his  remedies  after  having  received  posses- 
sion of  the  goods.^' 

Damages  for  Nondelivery, 

Before  the  property  has  been  transferred  to  the  buyer,  his  only 
remedy  is  an  action  for  breach  of  contract  If  he  has  paid  the 
price,  and  the  goods  are  not  delivered,  he  may,  as  has  been  shown, 
rescind  the  contract,  and  recover  what  he  has  paid  upon  an  implied 
contract  in  an  action  for  money  had  or  received.^ ^  If  he  has  not 
paid  the  price,  his  only  remedy,  where  the  seller  fails  to  deliver, 
is  to  sue  for  damages  for  breach  of  the  contract.  His  position  i» 
the  converse  of  that  of  the  seller  who  is  suing  the  buyer  for  non- 

16  See  Chalm.  Sale,  §  53. 

17  Benj.  Sales,  §  861). 

18  Nash  v.  Towne,  5  Wall.  689;  Cleveland  t.  Sterrett,  70  Pa.  St.  204;  ante 
p.  109. 


236  ACTION    FOR    BREACH    OF    THE    CONTRACT.  [Ch.    10 

acceptance.  He  has  tlie  money  in  his  hands,  and  may  go  into  the 
market  and  buy.  The  loss  which  he  sustains  by  the  nondelivery 
of  the  goods  is  therefore,  under  ordinary  circumstances,  simply 
the  difference  between  the  contract  price  and  the  market  price  of 
the  goods  at  the  time  and  place  of  delivery,  and  this  is  the  measure 
of  his  damages.^'  If  he  has  prepaid  the  price,  he  may  still  sue  for 
nondelivery,  and  is  entitled  to  recover  the  market  price  of  the  goo<]s 
without  deduction.^"  If  there  is  no  difference  between  the  contract 
pi'ice  and  the  market  price,  he  is  entitled  only  to  nominal  dam 

^lg(^S.^^ 

Even  if  the  seller  repudiates  the  contract  before  the  date  of  de- 
livery, so  that  the  buyer  may  sue  at  once,  the  damages  are  to  be 
assessed  as  of  the  agreed  date  of  delivery,  unless  it  appears  that 
the  buyer  could  have  supplied  himself  in  the  market  on  such  terms 

i»  Barrow  v.  Amaud,  8  Q.  B.  604,  at  page  609;  Shaw  v.  Nudd,  8  Pick.  9; 
Dana  v.  Fiedler,  12  N.  Y.  40;  Cahen  v.  Piatt.  69  N.  Y.  348;  Fessler  v.  Love, 
48  Pa.  St.  407;  Kribs  v.  Jones,  44  Md.  396;  Miles  v.  Miller,  12  Bush,  134; 
Mc'Kercher  v.  Curtis,  35  Mich.  478;  Cockburn  v.  Ashlaud  Lumber  Co.,  54 
Wis.  619,  12  N.  W.  49;  McGrath  v.  Gegner,  77  Md.  331,  26  Atl.  502;  Olson 
V.  Sharpless,  53  Minn.  91,  55  N.  W.  125;  Hewson-Herzog  Supply  Co.  v.  Min- 
nesota Brick  Co.,  55  Minn,  530,  57  N.  W.  129.  In  case  of  a  total  failure  to 
deliver,  the  buyer  may  recover  the  amount  with  which  he  could  have  pur- 
chased machines  of  equal  value.  If  those  delivered  were  defective,  the 
measure  of  his  damages  is  the  cost  of  supplying  the  deficiency.  Marsh  v. 
McPherson,  105  U.  S.  709.  See,  also,  Stillwell  &  Bierce  Manuf'g  Co.  v. 
Phelps,  130  U.  S.  520,  9  Sup.  Ct.  601.  When  the  market  value  is  unnaturally 
inflated  by  unlawful  means,  it  is  not  the  true  test  Kountz  v.  Kirkpatrick, 
72  Pa.  St.  376.  Where  goods  are  purchased  to  be  shipped  abroad,  and 
the  fact  is  known  to  the  seller,  and  it  is  impossible  for  the  buyer  to  dis- 
<jover  the  inferiority  of  the  goods  till  they  reach  their  ultimate  destination, 
the  measure  of  damages  is  the  difference  between  the  market  price  of  the 
goods  contracted  for  at  the  date  of  aiTival  and  the  price  afterwards  realized 
on  a  sale  of  the  goods,  with  costs  and  expenses  of  sales.  Camden  Consoli- 
dated Oil  Co.  V.  Schlens,  59  Md.  31. 

20  Startup  V.  Cortazzi,  2  Cromp.  M.  &  R.  165;  Smethurst  v.  Woolston,  5 
Watts  &  S.  106;  Huniphreysville  Copper  Co.  v.  Vermont  Cdpper  Min.  Co., 
33  Vt.  92.  Some  courts  allow  the  buyer  to  recover  the  highest  market  price 
between  the  breach  and  the  action.  Clark  v.  Pinney,  7  Cow.  681;  Gilman 
V.  Andrews,  66  Iowa,  116,  23  N.  W.  291;  Suydam  v.  Jenkins,  3  Sandf.  614; 
Benj.  Sales  (Bennett's  6th  Am.  Ed.)  901,  note. 

21  Valpy  v.  Oakeley,  16  Q.  B.  941;  Moses  v.  Rasin,  14  Fed.  772;  Fessler 
▼.  Love,  48  Pa.  St.  407;    Wire  v.  Foster,  62  Iowa,  114,  17  N.  W.  174. 


Ch.  10]  REMEDIES  OF  THE  BUYER.  237 

as  to  mitigate  his  loss.*''     But,  if  the  time  of  delivery  is  extended 
at  the  seller's  request,  damages  will  be  assessed  according  to  the 
market  price  at  the  date  to  which  delivery  is  postponed.^^ 
Damages  where  there  is  no  Market  Price. 

To  the  rule  of  market  price  there  are  some  exceptions,  depending 
on  particular  circumstances.  The  goods  may  have  no  market 
price  at  the  place  of  delivery  for  lack  of  a  market,  in  which  case 
the  market  value  may  be  determined  by  ascertaining  the  market 
price  in  the  nearest  available  market,  and  adding  the  expense  of 
fetching  the  goods  to  the  place  of  delivery;  ^*  or,  if  there  is  no  avail- 
able market,  the  market  value  may  be  determined  by  ascertaining 
the  cost  of  manufacturing  the  goods,  if  that  is  the  natural  and  rea- 
sonable way  to  procure  them;  *^  or,  if  the  exact  description  of 
goods  cannot  be  obtained,  the  damages  may  be  fixed  by  the  price  of 
the  best  substitute  obtainable,  if  it  is  reasonable  for  the  buyer  to 
take  that  course.^*  If  no  substitute  is  obtainable,  the  buyer  may 
be  entitled  to  special  damages.^'^ 
Special  Damages. 

As  in  other  classes  of  contracts,  the  damages  may  be  special  as 
well  as  general.     The  measure  of  general  damages  is  the  loss  di- 

22  Roper  V.  Johnson,  L.  R.  8  C.  P.  167;  Austrian  &  Co.  v.  Springer,  94 
Mich.  343,  54  N.  W.  50. 

23  Ogle  V.  Earl  Vane,  L.  R.  3  Q.  B.  272;  Hickman  v.  Haynes,  L.  R.  10  C. 
P.  598;  Roberts  v.  Benjamin,  124  U.  S.  64,  8  Sup.  Ct.  393;  Hill  v.  Smith, 
34  Vt.  535;   McDermid  v.  Redpath,  39  Mich.  372. 

2  4  Grand  Tower  Co.  v.  Phillips,  23  Wall.  471;  Furlong  v.  Polleys,  30  Me. 
491;   Cahen  v.  Piatt,  69  N.  Y.  348;  Johnson  v.  Allen,  78  Ala.  387. 

2  5  Paine  v.  Sherwood,  21  Minn.  225. 

2  6  Hinde  v.  Liddell,  L.  R.  10  Q.  B.  265.  The  buyer  must  always  make 
reasonable  exertions  to  mitigate  his  damages.  Hammer  v.  Schoenfelder,  47 
Wis.  455,  2  N.  W.  1129. 

27  Parsons  v.  Sutton,  66  N.  Y.  92;  Richardson  v.  Chynoweth,  26  Wis.  656. 
Some  courts,  however,  permit  the  buyer  to  recover  his  actual  loss  by  way 
of  general  damages,  on  the  ground  that,  where  an  article  of  similar  quality 
cannot  be  procured,  this  is  a  contingency  which  must  be  considered  to  have 
been  within  the  contemplation  of  the  parties,  who  are  presumed  to  know 
whether  the  article  is  of  limited  production  or  not.  McHose  v.  Fulmer,  73 
Pa.  St.  305;  Culin  v.  Woodbury  Glass  Works,  108  Pa.  St.  220;  Bell  v.  Rey- 
nolds, 78  Ala.  511.  See,  also,  Carroll-Porter  Boiler  &  Tank  Co.  v.  Columbus 
Mach.  Co.,  5  C.  C.  A.  190,  55  Fed.  451. 


238  ACTION    FOR    BREACH    OF    THE    CONTRACT.  [Ch.    10 

rectiv  and  naturally  resulting  from  the  breach  of  the  contract, 
under  ordinary  circumstances.  The  rule  as  to  market  price  flows 
naturally  from  this  general  principle.  The  measure  of  si)ecial  dam- 
ages is  the  loss  directly  and  naturally  resulting  from  the  breach 
of  contract  uuder  the  special  circumstances  of  the  case  as  contem- 
plated by  the  parties.  In  the  leading  case  of  Hadley  v.  Baxendale,** 
the  rule  as  to  the  measure  of  damages  in  cases  of  contract  was  laid 
down  as  follows:  "Where  the  parties  have  made  a  contract  which 
one  of  them  has  broken,  the  damages  which  the  other  party  ought 
to  receive  in  respect  of  such  breach  of  contract  should  be  such  as 
may  be  fairly  and  reasonably  considered  either  as  arising  naturally, 
i.  e.  according  to  the  usual  course  of  things,  from  such  breach  of 
contract  itself,  or  such  as  may  reasonably  be  supposed  to  have  been 
in  contemplation  of  both  parties,  at  the  time  they  made  the  contract, 
as  the  probable  result  of  the  breach  of  it.  Now,  if  the  special 
circumstances  under  which  the  contract  was  actually  made  were 
communicated  by  the  plaintiffs  to  the  defendants,  and  thus  known 
to  both  parties,  the  damages  resulting  from  the  breach  of  such  a 
contract,  which  they  would  reasonably  contemplate,  would  be  the 
amount  of  injury  which  would  ordinarily  follow  from  a  breach  of 
contract  under  these  special  circumstances,  so  known  and  oom- 
municated.  But,  on  the  other  hand,  if  these  special  circumstances 
were  wholly  unknown  to  the  party  breaking  the  contract,  he,  at  the 
most,  could  only  be  supposed  to  have  had  in  contemplation  the 
amount  of  injury  which  would  arise  generally,  and  in  the  great  mul 
titude  of  cases  not  affected  by  any  special  circumstances,  from  such 
a  breach  of  contract."  Substantially  the  same  statement  of  the 
rule  was  made  in  New  York  in  the  leading  case  of  Griffin  v.  Col- 
ver,^®  and  these  principles  have  been  repeatedly  affirmed. 

It  will  be  seen  that  the  measure  of  both  general  and  special  dam- 
ages really  depends  on  the  same  principle,  viz.:  That  a  party  is 
charged  with  the  damages  which  a  reasonable  man  would  contem- 
plate as  the  probable  result  of  the  breach,  if  he  directed  his  mind 
to  it.  It  has  been  objected  "that,  when  parties  enter  into  a  con- 
tract, they  contemplate  its  perfoimiance,  and  not  its  breach;  but 
the  answer  is  that  the  standard  of  the  law  is  always  an  objective 

28  9  Exch.  341,  354,  23  Law  J.  Exch.  179. 

«»  IG  N.  Y.  489.    See,  also,  Cassidy  ?.  Le  L  evre,  45  N.  Y.  5G2. 


Ch.  10]  REMEDIES    OF    THE    BUYER.  239 

one.  The  question  is  always,  not  what  the  particular  parties  had 
actually  in  contemplation,  but  what  a  reasonable  man  with  their 
knowledge  would  have  contemplated  as  the  likely  result,  if  he  had 
directed  his  attention  to  it."  ^°  Each  case  involving  special  dam- 
ages must  be  determined  by  its  own  merits.  Special  damages  are 
not  recoverable,  unless  alleged  with  suflQcient  particularity  to  ena- 
ble the  defendant  to  meet  the  demand.^^ 
Communication  of  Special  Circumstances. 

The  seller  cannot  be  charged  with  special  damages,  unless  he  had 
knowledge  of  the  special  circumstances  from  which  the  special  loss 
would  be  likely  to  result;  ^*  and  while,  if  he  had  such  knowledge, 
he  will  generally  be  charged,^^  it  is  important  to  bear  in  mind 
that  mere  communication  of  the  special  circumstances  is  not  enough 
unless  it  be  given  under  such  circumstances  as  reasonably  to  imply 
that  it  formed  the  basis  of  the  agreement, — that  is,  unless  the 
circumstances  are  such  that  it  must  be  supposed  that  a  reasonable 
man  would  have  had  them  in  contemplation  as  a  probable  result 
of  the  breach  of  the  contract.** 


80  Chalm.  Sale,  78-80,  85,  86. 

31  Smith  V.  Thomas,  2  Bing.  N.  C.  372;  Parsons  v.  Sutton,  66  N.  T.  92; 
Furlong  v.  Polleys,  30  Me.  491. 

3  2  Cory  V.  Thames  Iron  Works  &  Ship  Bldg.  Co.,  L.  R.  3  Q.  B.  181,  37 
Law  J.  Q.  B.  68;  British  Columbia  &  V.  I.  Spar,  Lumber  &  Sawmill  Co. 
V.  Nettleship,  L.  R.  3  C.  P.  499,  37  Law  J.  C.  P.  235;  Bartlett  v.  Blanchard, 
13  Gray,  429;  Fessler  v.  Love,  48  Pa.  St.  407;  Billmeyer  v.  Wagner,  91  Pa. 
St.  92;  Paine  v.  Sherwood,  19  Minn.  315  (Gil.  270);  Mihills  Manuf'g  Co.  v. 
Day,  50  Iowa,  250;   Peace  River  Phosphate  Go.  v.  Grafflin,  58  Fed.  550. 

33  Smeed  v.  Foord,  1  El.  &  El.  602,  28  Law  J.  Q.  B.  178  (loss  of  crop  from 
delay  in  furnishing  threshing  machine).  A  seller  who  contracts  to  supply  a 
butcher  with  ice,  knowing  it  is  required  to  preserve  meat,  is  liable  if  the 
meat  spoils  in  consequence  of  his- failure  to  supply,  and  the  buyer  is  unable 
to  supply  himself  elsewhere.  Hammer  v.  Schoenfelder,  47  Wis.  455,  2  N. 
W.  1129.  The  full  amount  of  damage  to  lettuce  growing  in  a  greenhouse, 
and  frozen  by  reason  of  failure  to  supply  water  for  steam  heating,  is  the 
measiire  of  damages  for  such  failure.  Watson  v.  Inhabitants  of  Needham, 
161  Mass.  404,  37  N.  E.  204. 

3  4  British  Columbia  &  V.  I.  Spar,  Lumber  &  Sawmill  Co.  v.  Nettleship, 
cited  in  note  32;  Home  v.  Midland  Ry.  Co.,  L.  R.  7  C.  P.  583,  591,  L.  R. 
8  C.  P.  131,  per  Willes,  J.;  Booth  v.  Spuyten  Duyvill  Rolling  Mill  Co..  GO  N. 
Y.  487,  496. 


240  ACTION  FOR  BREACH  OF  THE  CONTRACT.         [Ch.  10 

A  seller  is  usually  bound  for  such  damages  as  result  to  the  buyer 
from  being  deprived  of  the  ordinary  use  of  a  chattel,  but  not  for 
such  damages  as  result  to  him  from  being  deprived  of  its  use  for 
a  special  or  extraordinary  purpose,  which  was  not  communicated.'* 
So  tlie  buyer  is  not  usually  entitled  to  damages  arising  from  loss  of 
profits  on  a  subsale,  or  from  penalties  or  expenses  incurred  by  him 
from  inability  to  execute  such  subsale;  '^  but  he  may  recover  such 
damages  if  the  subsale  and  the  other  special  circumstances  neces- 
sary to  advise  him  of  the  probable  consequences  of  a  breach  were 
communicated  to  the  seller.^^  For  a  full  discussion  of  the  rules 
of  damages  common  to  sales  and  other  classes  of  contracts,  the 
reader  is  referred  to  works  upon  damages. 

SAME— SPECIFIC  PERFORM  A.NCE. 

129.  Where  an  action  for  damages  vnll  not  afford  an 
adequate  compensation  for  breach  of  the  seller's  agreement 
to  deliver  the  goods,  the  buyer  may  maintain  a  suit  in 
equity  for  the  specific  performance  of  the  contract. 

As  a  general  rule,  where  a  party  has  a  plain,  adequate,  and  com- 
plete remedy  at  law,  equity  will  not  assume  jurisdiction.  Under 
ordinary  circumstances,  the  buyer  can  go  into  the  market  and  buy 
other  goods  in  place  of  those  which  the  seller  fails  to  deliver,  and 
therefore  an  action  for  damages  affords  the  buyer  an  adequate 
remedy.  In  exceptional  cases,  however,  as  where  goods  similar  to 
those  contracted  for  cannot  be  obtained,  equity  will   interfere.^' 

SBCory  V.  Thames  Iron  Works  &  Ship  Bldg.  Co.,  L.  R.  3  Q.  B.  181,  37 
Law  J.  Q.  B.  G8. 

36  Williams  v.  Reynolds,  G  Best  &  S.  495,  34  Law  J.  Q.  B.  221;  Devlin  v. 
Mayor,  etc.,  63  N.  Y.  8;  Cocliburn  v.  Ashland  Lumber  Co.,  54  Wis.  619, 
627,  12  N.  W.  49.    See,  also.  Fox  v.  Harding,  7  Cush.  516. 

87  Elbinger  Actien-Gesellschafft  fur  Fabrication  von  Eisenbahn  Materiel 
V.  Armstrong,  L.  R.  9  Q.  B.  473;  Hydraulic  Engineering  Co.  v.  McHafBe, 
4  Q.  B.  Div.  670;  Grebert-Borgnis  v.  Nugent,  15  Q.  B.  Div.  85;  Messmore 
V.  New  York  Shot  &  Lead  Co.,  40  N.  Y.  422;  Booth  v.  Spuyten  Duyvill  Roll 
ing  Mill  Co.,  60  N.  Y.  487. 

38Cuddee  v.  Rutter,  1  White  &  T.  Lead.  Cas.  Eq.  (Am.  Ed.  1876)  p.  1063, 
and  notes 


Ch.  10]  BEMEDIES  OF  THE  BUYER.  241 

For  example,  specific  performance  has  been  granted  where  the  arti- 
cles purchased  were  of  unusual  beauty,  rarity,  and  distinction,  such 
as  objects  of  virtu;  ^'  where  the  subject  of  sale  was  a  patent  right,*" 
or  a  slave;  *^  and  in  a  recent  case  even  where  the  goods  were  in- 
dispensable to  the  buyer's  business,  and  could  not  otherwise  be 
obtained  in  the  city  where  he  was  engaged  in  business.** 

SAME— ACTION  FOR  CONVERSION. 

130.  Where  under  a  contract  of  sale  the  property  in  the 
goods  has  passed  to  the  buyer,  and  the  seller  wrongfully 
neglects  or  refuses  to  deliver  the  goods,  the  buyer  may 
maintain  an  action  for  conversion  of  the  goods  against  the 
seller.*^ 

When  the  property  has  passed,  if  the  seller  refuses  to  deliver, 
the  buyer  has  the  same  right  of  action  for  nondelivery  as  if  the 
property  had  not  passed;  but  he  has,  in  addition  to  his  right  of 
action  on  the  contract,  the  rights  of  an  owner.  He  has  not  only 
the  property  in  the  goods,  but  the  right  of  possession,  defeasible 
in  the  case  of  his  failure  to  pay  for  the  goods.**  If  he  is  not  in 
default,  therefore,  he  may,  on  the  refusal  of  the  seller  to  deliver, 
maintain  an  action  for  conversion.  As  a  rule,  the  measure  of  the 
buyer's  damages  in  such  an  action,  either  against  the  seller*'^  or  a 
third  person,  who  has  dealt  with  the  goods  under  such  circum- 
stances as  to  amount  to  a  conversion,*'  is  the  value  of  the  goods 
at  the  time  of  the  conversion.  But  he  cannot  recover  greater 
damages  against  the  seller  by  suing  in  tort  than  by  suing  on  the 
contract;  and,  if  he  has  not  paid  for  the  goods,  the  measure  of  his 

«»  Falcke  v.  Gray,  4  Drew.  658,  29  Law  J.  Ch.  28. 

40  Somerby  v.  Buntin,  118  Mass.  279;  Hapgood  v.  Rosenstock,  23  Fed.  86 
So  of  a  patented  article.    Adams  v.  Messinger,  147  Mass.  185,  17  N.  E.  491. 

*i  Young  V.  Burton,  1  McMul.  Eq.  255. 

<2  Equitable  Gaslight  Co.  v.  Baltimore  Coal  Tar  &  Manuf  g  Co.,  63  Md.  285. 

43  See  Chalm.  Sale,  §  54. 

4*Benj.   Sales,  §§  883,  886. 

*B  Kennedy  v.  Whitwell,  4  Pick.  466;   Philbrook  v.  Eaton,  134  Mass.  398. 

*8  Chinery  v.  Viall,  cited  in  following  note;  France  v..  Gaudet,  L.  B.  6 
Q.  B.  199. 

SALES— 16 


242  ACTION    FOR   BREACH    OF   THE    CONTRACT.  [Ch.    10 

damages  will  be  the  difference  between  the  contract  price  and  the 
market  value.*^ 

In  virtue  of  his  ownership,  the  buyer  may  also  maintain  an  action 
of  replevin  for  the  recovery  of  possession  of  the  goods,  but  actions 
for  the  recovery  of  possession  are  generally  regulated  by  statute/* 

SAME— BREACH    OF    WARRANTY    OF   QUALITY— RIGHT    TO 

REJECT. 

131.  Where,  under  an  executory  contract  of  sale,  there 
is  a  "warranty  of  the  quality,  fitness,  or  condition  of  the 
goods,  and  the  goods  do  not  fulfill  the  "warranty,  the 
buyer  may  reject  the  goods. 

If  the  goods  sold  are  not  of  the  description  which  the  buyer 
agreed  to  purchase,  he  may  reject  them,  as  already  explained,  be- 
■cause  it  is  a  condition  of  the  contract  that  the  goods  shall  answer 
the  description,  and  the  seller  does  not  fulfill  his  contract  by  de- 
livering different  goods.**  For  the  same  reason,  in  an  executory 
contract,  the  buyer  may  reject  the  goods  if  they  fail  to  conform  to 
the  quality  which  the  seller  warranted  they  should  possess; "" 
for  an  undertaking  that  the  goods  shall  possess  certain  qualities, 
whether  in  form  of  a  description  or  of  a  warranty,  "is  not  a  mere 
warranty,  but  a  condition,  the  performance  of  which  is  precedent 
to  any  obligation  upon  the  vendee  under  the  contract,  because  the 
■existence  of  these  qualities,  being  part  of  the  description  of  the 
thing  sold,  becomes  essential  to  its  identity,  and  the  vendee  cannot 
be  obliged  to  receive  and  pay  for  a  thing  different  from  that  for 
which  he  contracted."  "^^ 

^7  Chinery  v.  Viall,  5  Hurl.  &  N,  288,  29  Law  J.  Exch.  180. 

•»8  See  Esson  v.  Tarbell,  9  Gush.  407;   Freelove  v.  Freelove,  128  Mass.  190. 

*»  Ante,  p.  155  et  seq. 

60  street  v.  Blay,  2  Barn.  &  Adol.  456;  Syers  y.  Jonas,  2  Exch.  Ill,  117; 
Heilbutt  V.  Hickson,  L.  R.  7  C.  P.  438,  451;  Dailey  v.  Green,  15  Pa.  St.  126; 
Doane  v.  Dunham,  65  111.  512,  79  111.  131;  Cox  v.  Long,  69  N.  C.  7,  9;  Lewis 
V.  Rountree,  78  N.  C.  323;  Byers  v.  Chapin,  28  Ohio  St  300;  Bigger- v. 
Bovard,  20  Kan.  204;    Polhemus  v.  Heiman,  45  Cal.  573. 

Bi2  Smith,  Lead.  Gas.  (8th  Am.  Ed.)  *31;  Pope  v.  Allis,  115  U.  S.  363,  6 
Sup.  Ct  69;   Benj.  Sales,  §  895. 


Ch.   10]  REMEDIES    OF   THE    BUYER,  243 


SAME— RIGHTS  AFTER  ACCEPTANCE. 

132.  Where  the  buyer  has  accepted  the  goods,  or  w^here 
the  contract  -was  for  the  sale  of  specific  goods  and  the 
property  therein  has  passed  to  the  buyer,  the  buyer  is  not 
entitled,  in  most  jurisdictions,  to  return  the  goods  (though 
in  some  states  he  may  rescind  the  contract,  and  return 
the  goods  for  breach  of  an  express  "w^arranty);  but 

(a)  He  may  maintain  an  action  against  the  seller  for 

damages  for  breach  of  -warranty.     Or 

(b)  He  may  set  up  against  the  seller   the  breach   of 

■w^arranty  in  diminution  or  extinction  of  the  price. 

133.  MEASURE  OF  DAMAGES  FOR  BREACH  OF 
WARRANTY.  The  measure  of  damages  for  breach  of 
■wrarranty  of  fitness,  quality,  or  condition  is  the  estimated 
loss,  directly  resulting  from  the  breach  of  -warranty.  Such 
loss  is  prima  facie  the  difference  bet-ween  the  value  of  the 
goods  at  the  time  of  delivery  to  the  buyer  and  the  value 
they  -would  have  had  if  they  had  ans-wered  the  -warranty. 

If  the  buyer  accepts  the  goods,  it  is  held  in  England  and  in  many 
jurisdictions  in  this  country  that  he  cannot  afterwards  rescind  the 
contract,  and  return  the  goods  on  account  of  a  mere  breach  of  war- 
ranty.®^  By  accepting,  he  waives  his  right  to  reject  them,  and 
must  seek  his  remedy  either  by  action  on  the  warranty  or  by  set- 
ting up  the  breach  in  diminution  of  the  price.  And  this  applies 
equally  whether  the  sale  is  of  a  specific  chattel  unconditionally, 

82  street  v.  Blay,  2  Barn.  &  Adol.  456;  Gompertz  v.  Denton,  1  Cromp.  & 
M.  207;  Poulton  v.  Lattimore,  9  Barn.  &  C.  259;  Dawson  v.  Collis,  10  G. 
B.  523,  533;  Thornton  v.  Wynn,  12  Wheat.  183;  Matteson  v.  Holt,  45  Vt. 
336;  Freyman  v.  Knecht,  78  Pa.  St.  141;  Muller  v.  Eno,  14  N,  Y.  597;  Fair- 
bank  Ganning  Go.  v.  Metzger,  118  N.  Y.  260,  269,  23  N.  E.  372;  Hoover  v. 
Sidener,  98  Ind.  290;  Lightburn  v.  Cooper,  1  Dana,  273;  Allen  v.  Anderson, 
3  Humph.  581;  Memck  v.  Wiltse,  37  Minn.  41,  33  N.  W.  3;  Wright  v.  Daven- 
port, 44  Tex.  164.  The  buyer  cannot  rescind  after  using  part  of  the  goods. 
Lyon  V.  Bertram,  20  How.  149.  See,  also,  Benj.  Sales,  §§  888-892,  comment- 
ing on  conflicting  dicta  in  Heyworth  v.  Hutchinson,  L.  R.  2  Q.  B.  447,  36 
Law  J.  Q.  B.  270. 


244  ACTION    FOB    BREACH    OF    THE    CONTRACT.  [Ch.   10 

in  which  case  acceptance  takes  phace  when  the  contract  is  entered 
into,  or  whether  the  sale  is  of  unascertained  goods,  wliich  are 
subsequently  accepted. 

In  some  states,  however,  where  there  is  an  express  warranty, 
a  different  rule  applies,  and  it  is  held  that  in  such  case  the  buyer 
may  rescind  the  contract  for  breach  of  the  warranty,  notwithstand- 
ing acceptance,  and  may  return  the  goods."' 
Breach  of  Warranty — Action  for  Damages. 

That  the  buyer,  after  receiving  and  accepting  the  goods,  may 
still  bring  an  action  for  damages  in  case  the  goods  are  inferior  in 
quality  to  that  warranted,  follows  from  the  general  rule  that  an 
action  for  damages  lies  in  every  case  of  a  breach  of  contract.''* 
Such  an  action  may  be  maintained  by  the  buyer  without  giving 
notice  to  the  seller  of  the  defects  and  without  offer  to  return," 

63  Bryant  v.  Isburgh,  13  Gray,  607;  Smith  v.  Hale,  158  Mass.  178,  33  N. 
E.  493;  Marshall  v.  Perry,  67  Me.  78;  Frauklin  v.  Long,  7  GUI  &  J.  407; 
Sparling  v.  Marks,  80  111.  125;  Branson  v.  Turner,  77  Mo.  489;  Johnson 
V.  Whitman  Agricultural  Co.,  20  Mo.  App.  101;  Rogers  v.  Hanson,  35  Iowa, 
283;  Upton  Manuf'g  Co.  v.  Huiske,  69  Iowa,  557,  29  N.  W.  621;  Bootbby  v. 
Scales,  27  Wis.  626.  "In  1816,  when  the  case  of  Bradford  v.  Manly,  13 
Mass.  139,  was  before  this  court,  and  afterwards,  until  1831,  the  law  of 
England  on  the  point  raised  in  the  present  case  was  supposed  to  be  as  we 
now  hold  it  to  be  here.  Lord  Eldon  had  said  in  Curtis  v.  Hannay,  3  Esp. 
82,  that  he  took  it  to  be  'clear  law,'  and  so  it  was  laid  down  in  2  Selw.  N. 
P.  (1st  Ed.)  586,  in  1807,  and  in  Long,  Sales,  125,  126,  in  1821,  and  in  2 
Starkie,  Ev.  (1st  Ed.)  645,  in  1825.  In  1831,  in  Street  v.  Blay,  2  Barru  & 
Adol.  461,  Lord  Eldon's  opinion  was  first  denied,  and  a  contrary  opinion 
expressed  by  the  court  of  king's  bench.  Yet  our  court  subsequently  (in  1839) 
decided  the  case  of  Perley  v.  Balch,  23  Pick.  283.  The  doctrine  of  that  de- 
cision prevents  circuity  of  action  and  multiplicity  of  suits,  and  at  the  same 
time  accomplishes  all  the  ends  of  justice."  Bryant  v.  Isburgh,  supra,  per 
Metcalf,  J. 

64  Poulton  V.  Lattimore,  9  Bam.  &  O.  259;  Day  v.  Pool,  52  N.  Y.  416; 
Scott  v.  Raymond,  31  Minn.  437,  18  N.  W.  274;  Cox  v.  Long,  69  N.  0.  7; 
Polhemus  v.  Heiman,  45  Cal.  573.    As  to  warranty  of  title,  ante,  p.  165. 

66  Poulton  V.  Lattimore,  9  Barn.  &  C.  259;  Fielder  v.  Starkin,  1  H.  Bl. 
17;  Pateshall  v.  Tranter,  3  Adol.  &  E.  103;  Douglass  Axe  Manuf'g  Co.  v. 
Gardner,  10  Gush.  88;  Vincent  v.  Leland,  100  Mass.  432;  Richards  v.  Grandy, 
49  Vt.  22;  Best  v.  Flint,  58  Vt.  543,  5  Atl.  192;  Babcock  v.  Trice.  18  111. 
420;  Ferguson  v.  Hosier,  58  Ind.  438;  English  v.  Spokane  Commission  Co., 
48  Fed.  196;  Id.,  6  C.  G.  A.  416,  57  Fed.  451;  Morse  v.  Moore,  83  Me.  473, 
22  AtL  362. 


Ch.  10]  B£M£DIE8  OV   THE  BUYBB.  245 

though  failure  to  give  notice  or  to  return  raises  a  presumption 
that  the  goods  were  not  actually  defective."     Some  courts,  how- 
ever, as  we  shall  see,  apply  a  different  rule  in  cases  of  warranty  by 
description." 
Diminution  of  Damages — Recoupment. 

Instead  of  brlEging  an  action  for  damages,  the  buyer  may  wait 
till  he  is  sued  for  the  price,  and  then  set  up  the  breach  of  warranty 
in  diminution  pro  tanto  of  the  damages. •**  And  at  common  law 
this  was  his  only  way  of  availing  himself  of  a  breach  of  warranty 
as  a  defense.  The  rule  was  stated  by  Parke,  B.,  in  the  leading 
case  of  Mondel  v.  Steel, °®  as  follows:  "Formerly  it  was  the  practice, 
when  an  action  was  brought  for  an  agreed  price  of  a  specific  chattel 
sold  with  a  warranty,  to  allow  the  plaintiff  to  recover  the  stipulated 
sum,  leaving  the  defendant  to  a  cross  action  for  breach  of  the  war- 
ranty; in  which  action  as  well  the  difference  between  the  price 
contracted  for  and  the  real  value  of  the  articles  as  any  consequen- 
tial damage  might  have  been  recovered.  ♦  ♦  *  The  perform- 
ance of  the  warranty  not  being  a  condition  precedent  to  the  pay- 
ment of  the  price,  the  defendant  who  received  the  chattel  war- 
ranted has  thereby  the  property  vested  in  him  indefeasibly,  and 

60  Poulton  V.  Lattimore,  9  Barn.  &  C.  259,  2G5;  Babcock  v.  Trice,  18  111. 
420;  Morse  v.  Moore,  83  Me.  473,  22  Atl.  362;  Tacoma  Coal  Co.  v.  Bradley, 
2  Wash.  St.  600,  27  Pac.  454;  Benj.  Sales,  §  900.  Some  courts,  however, 
draw  a  distinction  between  patent  and  latent  defects,  and  hold  that,  if  the 
defects  are  so  visible  that  it  is  apparent  the  buyer  knew  of  them  when  he 
received  the  goods,  the  buyer,  by  accepting  the  goods  in  fulfillment  of  the 
contract,  waives  his  right  to  avail  himself  of  the  warranty.  See  Buffalo 
Barb-Wire  Co.  v.  Phillips,  67  Wis.  129,  30  N.  W.  295;  Locke  v.  Williamson, 
40  Wis.  377;  Morehouse  v.  Comstock,  42  Wis.  626;  Nye  v,  Iowa  City  Alcohol 
Works,  51  Iowa,  129,  50  N.  W.  988. 

BT  Post,  p.  246. 

88  Street  v.  Blay,  2  Barn.  &  Adol.  456;  Parson  v.  Sexton,  4  C.  B.  899; 
Poulton  V.  Lattimore,  9  Barn.  &  C.  259;  Withers  v.  Greene,  9  How.  213; 
Lyon  V.  Bertram,  20  How.  149,  154;  Bradley  v.  Rea,  14  Allen,  20;  Dailey 
V.  Green,  15  Pa.  St.  118,  126;  Dayton  v.  Hooglund,  39  Ohio  St  671;  Doane 
v.  Dunham,  65  111.  512,  79  111.  131;  Underwood  v.  Wolf,  131  111.  425,  23  N. 
E.  598;  Morehouse  v.  Comstock,  42  Wis.  626;  Polhemus  v.  Heiman,  45  Cal. 
573;  Breen  v.  Moran,  51  Minn.  525,  53  N.  W.  755;  Central  Trust  Co.  v. 
Arctic  Ice  Mach.  Mauuf'g  Co.,  77  Md.  202,  26  Atl.  493. 

»»  8  Mees.  &  W.  858. 


246  ACTION    FOB   BREACH    OF   THE   CONTRACT.  [Ch.    10 

Is  incapable  of  returning  it  back.  He  lias  all  that  he  stipulated 
for  as  the  condition  of  paying  the  price,  and  therefore  it  was  held 
that  he  ought  to  pay  it,  and  seek  his  remedy  on  the  plaintiff's  con 
tract  of  warranty.  ♦  ♦  ♦  But,  after  the  case  of  Basten  v.  Butter  (7 
East,  479),  a  different  practice  began  to  prevail,  and,  being  attended 
with  much  practical  convenience,  has  since  been  generally  followed; 
and  the  defendant  is  now  permitted  to  show  that  the  chattels,  by 
reason  of  the  noncompliance  with  the  warranty,  were  diminished 
in  value.  ♦  ♦  ♦  The  rule  is  that  it  is  competent  for  the  defend- 
ant, not  to  set  off  by  a  procedure  in  the  nature  of  a  cross  action 
the  amount  of  damages  which  he  has  sustained  by  breach  of  the 
contract,  but  simply  to  defend  himself  by  showing  how  much  less 
the  subject-matter  of  the  action  was  worth,  by  reason  of  the  breach 
of  contract;  and  to  the  extent  that  he  obtains,  or  is  capable  of 
obtaining,  an  abatement  of  price  on  that  account,  he  must  be  con- 
sidered as  having  received  satisfaction  for  the  breach  of  contract, 
and  is  precluded  from  recovering  in  another  action  to  that  extent, 
but  no  more." 

This  case  also  determined  that  the  buyer  must  bring  a  cross 
action  if  he  desired  to  claim  consequential  or  special  damages;  but, 
under  the  changed  procedure  now  generally  prevailing,  the  buyer 
may  recover  such  damages  by  way  of  counterclaim.®"  And  to- 
day in  most  states  such  damages  may  be  set  up  by  way  of  defense 
or  counterclaim  in  an  action  on  a  note  given  for  the  price.' ^ 
Breach  of  Condition  as  Breach  of  Warranty. 

It  is  said  in  Benjamin  on  Sales  that  "although  a  man  may  refuse 
to  perform  his  promise  till  the  other  party  has  complied  with  a 
condition  precedent,  yet,  if  he  has  received  and  accepted  a  sub- 
stantial part  of  that  which  was  to  be  performed  in  his  favor,  the 
condition  precedent  changes  its  character,  and  becomes  a  warranty, 
or  independent  agreement,  affording  no  defense  to  an  action,  but 
giving  a  right  to  counterclaim  for  damages."  '^  We  have  already 
seen  that,  in  an  executory  sale,  an  undertaking  that  the  goods  shall 

80  See  Zabriskie  v.  Central  Vt.  R.  Co.,  131  N.  Y.  72,  29  N.  E.  1006. 

81  Withers  v.  Greene,  9  How.  213;  Ruff  v.  Jarrett,  94  111.  475;  Went  worth 
V.  Dows,  117  Mass.  14,  per  Colt,  J.;   Wright  v.  Davenport,  44  Tex.  164. 

82  Benj.  Sales,  §  564,  citing  Ellen  v.  Topp,  6  Exch.  424;  Behn  v.  Bumess, 
8  Best  &  S.  751,  32  Law  J.  Q.  B.  204.    See,  also,  Chalm.  Sale,  §  14. 


Ch.   10]  REMEDIES   OF   THE    BUYER.  247 

possess  a  certain  quality  may  be  treated  as  a  condition,"  and  also 
that  a  warranty  survives  the  acceptance  of  the  goods  notwithstand- 
ing that  the  buyer  has  notice  of  defects  which  constitute  a  breach 
of  the  warranty.®*  There  seems  no  reason  why  the  same  rule 
should  not  be  applied  whether  the  undertaking  that  the  goods  shall 
possess  a  certain  quality  is  in  the  form  of  a  condition  such  as  is 
implied  from  the  description  of  the  goods,  or  whether  it  is  the  form 
of  a  warranty.  And  the  cases  very  generally  so  hold,  and  allow  the 
buyer,  where  the  goods  do  not  conform  to  the  description  specified, 
to  accept  the  goods,  notwithstanding  such  nonconformity,  and  in 
effect  to  treat  the  breach  of  condition  as  a  breach  of  warranty.®" 
Some  cases,  however,  draw  a  distinction  between  conditions  and 
warranties,  and  hold  that,  while  a  warranty  survives  acceptance 
even  as  to  known  defects,  a  condition  that  the  goods  shall  be  of  a 
certain  description  does  not  survive  acceptance,  so  far  as  concerns 
visible  defects,  when  the  buyer  has  had  an  opportunity  to  inspect; 
but  that  if,  after  opportunity  for  inspection,  the  buyer  accepts  the 
goods,  he  is  precluded  from  recovering  damages  for  any  variation 
between  the  goods  delivered  and  the  goods  described  in  the  con- 
tract" 

«8  Ante,  p.  242. 

«4  Ante,  p.  244. 

«B  Bagley  v.  Cleveland  Rolling  Mill  Co.,  21  Fed.  159;  English  v.  Spokane 
Commission  Co.,  48  Fed.  197;  Id.  6  C.  C.  A.  416,  57  Fed.  451;  Reynolds 
V.  Palmer,  21  Fed.  433;  Wolcott  v.  Mount,  36  N.  J.  Law,  262;  Hollo  way 
V.  Jacoby,  120  Pa.  St.  583,  15  Atl.  487;  Lewis  v.  Rountree,  78  N.  C.  323; 
Eagan  Co.  v.  Johnson,  82  Ala,  233,  2  South.  302;  Dayton  v.  Hooglund,  39 
Ohio  St.  671;  Morse  v.  Moore,  83  Me.  473,  22  Atl.  362;  Tacoma  Coal  Co. 
v.  Bradley,  2  Wash.  St.  600,  27  Pac.  454.  See,  also,  Marsh  v.  McPherson, 
105  U,  S.  709. 

««  Haase  v.  Nonnemacher,  21  Minn.  486;  Maxwell  v.  Lee,  34  Minn,  511, 
27  N.  W.  196;  Thompson  v.  Libby,  35  Minn.  443,  29  N.  W.  150  (implied  con- 
dition of  merchantableness  does  not  survive  acceptance  in  respect  to  visible 
defects);  Comstock  v.  Sanger,  51  Mich.  497,  16  N.  W.  872.  It  is  difficult  to 
reconcile  all  the  New  York  cases  on  this  point,  but  the  result  of  the  later 
decisions  may  be  gathered  from  the  following  extracts  and  citations:  "An 
acceptance  by  the  vendee  of  personal  property  manufactured  under  an 
executory  contract  of  sale,  after  a  full  and  fair  opportunity  of  inspection.  In  the 
absence  of  fraud,  estops  him  from  thereafter  raising  any  objection  to  visible 
defects  and  imjyerfections,  whether  discovered  or  not,  unless  such  delivery  and 


248  ACTION    FOR    BREACH    OF    THE    CONTRACT.  [Ch.    10 

Measure  of  Damages. 

Prima  facie  the  measure  of  damages,  in  case  of  a  breach  of  war- 
ranty, is  the  difference  between  the  value  of  the  goods  as  they  in 
fact  were  and  the  value  of  the  goods  as  it  would  have  been  if  they 
had  been  as  warranted.'^      This  is  because,  in  ordinary  cases,  the 

acceptance  is  accompanied  by  some  warranty  of  quality  manifestly  Intended 
to  survive  acceptance.  Reed  v.  Kaudall,  29  N.  Y.  358;  Gaylord  Manufg 
Co.  V.  Allen,  53  N.  Y.  515;  Gurney  v.  Atlantic  &  G.  W.  R.  Co.,  58  N.  Y.  358; 
Norton  v.  Drey  fuss,  106  N.  Y.  90,  12  N.  E.  428;  Coplay  Iron  Co.  v.  Pope, 
108  N.  Y.  232,  15  N.  E.  335;  Brown  v.  Foster,  108  N.  Y.  387,  15  N.  E.  008." 
Studer  v.  Bleistein,  115  N.  Y.  316,  325,  22  N.  E.  243,  per  Ruger,  C.  J.  "Upon 
an  executory  sale  of  goods  by  sample,  with  warranty  that  the  goods  shall 
correspond  with  the  sample,  the  vendee  is  not  precluded  from  claiming  and 
recovering  damages  for  breach  of  warranty,  although  he  has  accepted  the 
goods  after  an  opportunity  for  inspection.  Kent  v.  Friedman,  101  N.  Y. 
616,  3  N.  E.  905;  Brigg  v.  Hilton,  99  N.  Y.  517,  3  N.  E.  51;  Gurney  v. 
Atlantic  &  G.  W.  R.  Co.,  58  N.  Y.  358.  •  •  *  The  cases  of  Coplay  Iron 
Co.  v.  Pope,  108  N.  Y.  232,  15  N.  E.  335;  Studer  v.  Bleistein,  115  N.  Y. 
316;  Pierson  v.  Crooks,  115  N.  Y.  539,  22  N.  E.  349,  and  other  cases  of  like 
character,— are  clearly  distinguishable,  inasmuch  as  one  is  a  contract  con- 
cerning a  sale  by  sample,  and  the  others  were  executory  contracts  for  the 
manufacture  and  sale  or  delivery  of  goods  of  a  particular  description.  In 
cases  of  the  latter  character,  where  the  quality  of  the  goods  Is  capable 
of  discovei-y  upon  Inspection,  and  where,  after  full  opportunity  for  such 
inspection,  the  goods  are  accepted,  and  no  warranty  attends  the  sale,  the 
vendee  is  precluded  from  recovering  damages  for  any  variation  between 
the  goods  delivered  and  those  described  in  the  contract."  Zabriskie  v.  Cen- 
tral Vt.  R.  Co.,  131  N.  Y.  72,  29  N.  E.  1006,  per  Ruger,  C.  J.  See,  also. 
Day  V.  Pool,  52  N.  Y.  416;  Parks  v.  Morris  Axe  &  Tool  Co.,  54  N.  Y.  586; 
Gentilli  v.  Starace,  133  N.  Y.  140,  30  N.  E.  600.  "AVhere  the  purchaser  of 
goods  delivered  on  an  executory  contract,  with  full  knowledge,  or  with  full 
opportunity  for  examination  and  knowledge,  of  their  defects,  which  are 
open  and  apparent  upon  mere  inspection,  takes  them  into  his  possession, 
and  appropriates  them  to  his  own  use,  without  notifying  the  vendor  at 
the  time  of  receiving  them,  or  within  a  reasonable  time  thereafter,  that  they 
are  not  accepted  as  fulfilling  the  contract,  he  cannot  recoup  damages  for 
such  defects  or  failures  in  an  action  for  the  contract  price."  McClure  v. 
Jefferson  (Wis.)  54  N.  W,  777,  per  Cassidy,  J. 

87  Jones  V.  Just,  L.  R.  3  Q.  B.  197;  Dingle  v.  Hare,  7  C.  B.  (N.  S.)  145, 
29  Law  J.  C.  P.  144;  Reggio  v.  Braggiotti,  7  Cush.  166;  Case  v.  Stevens, 
137  Mass.  551;  Thoms  v.  Dingley,  70  Me.  100;  Rutan  v.  Ludlam,  29  N.  J. 
Law,  398;  Freyman  v.  Knecht,  78  Pa.  St  141;  Porter  v.  Pool,  62  Ga.  238; 
Herring  v.  Skaggs,  62  Ala.  180;    Ferguson  v.   Hosier,  58  Ind.   438;    Case 


Ch.   10]  REMEDIES    OP   THE    BUYER.  249 

difference  is  the  loss  which  results  directly  from  the  breach  of  war- 
ranty. But  the  buyer  may  recover  whatever  other  losses  directly 
result  from  the  breach.  Thus  where  the  seller  warranted  seed  as 
of  a  particular  description,  and  delivered  inferior  seed,  he  was  held 
liable  for  the  loss  of  crop  which  thereby  resulted  to  the  buyer;  '* 
and,  where  the  buyer  resold,  the  seller  was  held  liable  for  the  loss 
of  crop  which  resulted  to  the  subpurchaser,  and  for  which  the 
buyer,  having  resold  with  a  warranty,  was  liable  to  the  subpur- 
chaser.*' 

The  rules  in  respect  to  special  damages  which  have  already  been 
stated  are  applicable.^**     The  question  is  what  a  reasonable  man, 

Threshing  Mach.  Co.  v.  Haven,  65  Iowa,  359,  21  N.  W.  677;  Aultman  & 
Taylor  Go.  v.  Hetherington,  42  Wis.  622;  Frohreich  v.  Gammon,  28  Minn. 
476,  11  N.  W.  88;  Merrick  v.  Wiltse,  37  Minn.  41,  33  N.  W.  3;  Wheeler  & 
W.  Manuf  g  Go.  v.  Thompson,  33  Kan.  491,  6  Pac.  902. 

es  Wolcott  V.  Mount,  38  N.  J.  Law,  496,  affirming  36  N.  J.  Law,  262; 
White  V.  Miller,  71  N.  Y.  118,  78  N.  Y.  393.  See,  also.  Passenger  v.  Thor- 
bum,  34  N.  Y.  634;  Van  Wyck  v.  Allen,  69  N.  Y.  61.  Contra,  Butler  v. 
Moore,  68  Ga.  780.  Where  a  druggist  sold  Paris  green  to  a  planter  for 
the  known  purpose  of  killing  cotton  worms,  but  the  article  was  not  Paris 
green,  and  failed  to  kill  the  worms  on  being  applied  to  the  buyer's  crop, 
the  measure  of  damages  for  the  breach  of  the  contract,  if  it  resulted  in 
the  loss  of  the  crop,  was  the  value  of  the  crop  as  it  stood,  with  the  cost 
of  the  article,  the  expense  of  applying  it,  and  interest  Jones  v.  George, 
56  Tex.  149,  61  Tex.  345. 
«8  RandaU  v.  Raper,  El.,  Bl.  &  El.  84,  27  Law  J.  Q.  B.  266, 
TO  Thoms  V.  Dingley,  70  Me.  100;  Parks  v.  Morris  Axe  &  Tool  Co.,  54  N. 
Y.  586;  Thorne  v.  McVeagh,  75  111.  81;  Herring  v.  Skaggs,  62  Ala.  180 
(seller  not  liable  for  valuables  stolen  from  safe  warranted  burglar  proof); 
McCormick  v.  Vanatta,  43  Iowa,  389;  Aultman  v.  Stout,  15  Neb.  356,  19 
N.  W.  464;  English  v.  Spokane  Commission  Co.,  6  G.  G.  A.  416,  57  Fed. 
451.  Buyer  reselling  with  waiTanty  may  recover  costs  of  defense  against 
subpurchaser,  where  seller  declines  to  defend.  Lewis  v.  Peake,  7  Taunt. 
153;  Hammond  v.  Bussey,  20  Q.  B.  Div.  79.  Where  the  seller  sold  a  re- 
frigerator to  a  poultry  dealer  with  knowledge  that  he  intended  to  use  it 
to  preserve  chickens  for  the  May  market,  and  warranted  that  it  would 
keep  them  in  perfect  condition,  which  it  failed  to  do,  and  many  chickens 
were  lost,  the  buyer  was  entitled  to  recover,  in  addition  to  the  difference 
between  the  value  of  the  refrigerator  as  constructed  and  as  warranted,  the 
market  value  of  the  chickens  lost,  less  expenses  of  sale,  Beeman  v.  Banta, 
118  N.  Y.  538,  23  N.  E.  887.  Where  a  manufacturer  of  ice  cream  bought 
eoloring  matter,  which  the  seller,  knowing  its  purpose,   represented  to  be 


250  ACTION    FOR    BREACH    OF   THE    CONTRACT.  [Ch.    10 

with  the  knowledge  of  the  parties,  would  have  contemplated  as  the 
probable  result  of  a  breach  of  the  warranty  had  he  applied  his 
mind  to  it.  **When  one  sells  and  warrants  a  thing  for  a  particular 
use,  upon  reasonable  ground  for  believing  that,  if  put  to  such  use, 
a  certain  loss  to  the  buyer  will  be  the  probable  result  if  the  war- 
ranty is  untrue,  •  •  •  the  seller  is,  under  the  warranty,  charge- 
able with  the  loss,  as  one  which  may  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  the  parties  when  making  the 
contract"  '* 

piire  and  harmless,  but  which  In  fact  was  poisonous,  and  the  buyer's  cus- 
tomers who  ate  ice  cream  containing  the  matter  were  made  sick,  and  the 
buyer  destroyed  the  ice  cream,  held,  that  the  buyer  could  recover  the  value 
of  the  goods  so  destroyed,  and  the  damage  caused  by  the  resulting  loss 
of  customers.  Swain  v.  Schieffelin,  134  N.  Y.  471,  31  N.  E.  1025.  The  buyer, 
suing  for  breach  of  warranty  of  a  tackle  block,  cannot  recover  a  sum  paid 
by  him  without  suit,  and  without  communication  with  the  defendant,  to 
a  sei-vant  for  personal  Injuries  caused  by  the  breaking  of  the  block,  unless 
the  servant  might  have  recovered  from  the  plaintiff.  Roughan  v.  Boston  & 
L.  Block  Ck).,  161  Mass.  24,  36  N.  E.  461. 

71  Frohreich  v.  Gammon,  28  Minn.  476,  11  N.  W.  88,  per  Berry,  J.    See, 
also,  Wilson  v.  Reedy,  32  Minn.  256,  20  N.  W.  153. 


TABLE  OF  CASES  CITED. 


A 

Page 

Abbot  V.  Bayley,  6  Pick.  89 1.5 

Abbott  V.  deal,  56  Iowa,  175,  9  N.  W.  115 13 

V.  GUchrist,  38  Me.  260 42 

Acebal  v.  Levy,  10  Bing.  376,  382,  383 33,  34,  B9,  71 

Ackert  v.  Barker,  131  Mass.  436 139 

Acraman  v.  Morrice,  8  O.  B.  449,  19  Law  J.  O.  P.  57 86 

Adams  v.  BeaU,  67  Md.  53,  8  Atl.  664 7,  8 

V.  CouUiard,  102  Mass.  167,  172,  173 136 

V.  Field,  21  Vt  256 76 

V.  Foley,  4  Iowa,  44 182 

V.  Gay,  19  Vt.  358,  360 142,  143 

V.  Messinger,  147  Mass.  185,  17  N.  E.  491 241 

V.  O'Connor,  100  aiass.  515 85 

Adams  Exp.  Co.  v.  Reno,  48  Mo.  264 147 

Adler  V.  Fenton,  24  How.  407 120 

Agnew  V.  Dumas,  64  Vt  147,  23  Ati.  643 01 

Aguirre  v.  Parmelee,  22  Conn.  473 221 

Aiken  v.  BlaisdeU,  41  Vt  655 136,  141,  142 

Alabama   G.  S.  R.  Co.  v.  Mt  Vernon  Co.,  84  Ala.  173,  4  South.  356 106,  107 

Alderman  v.  Eastern  R.  R.,  115  Mass.  233 107 

Aldrick  v.  Butts,  5  R.  I.  218 110 

Aldrldge  v.  Johnson,  7  El.  &  Bl.  885,  26  Law  J.  Q.  B.  296 101 

Alexander  v.  Gardner,  1  Bing.  N.  C.  671 9S 

V.  Haskins,  68  Iowa,  73,  25  N.  W.  935 13 

V.  Swackhamer,  105  Ind.  81,  4  N.  E.  433,  5  N.  E.  908 109 

Alfred  Shrimpton  &  Sons  v.  Dworsky,  2  Misc.  Rep.  123,  21  N.  Y.  Supp.  461    41 

Allan  V.  Gripper,  2  Cromp.  &  J.  218 223 

V.  Lake,  18  Q.  B.  560 15a 

Allard  v.  Greasert  61  N.  Y.  1 50 

Allatt  V.  Carr,  27  Law  J.  Exch.  385 24 

Allen  V.  Aguirre,  7  N.  Y.  543 45 

V.  Anderson,  3  Humph.   581 243 

V.  Bennet  8  Taunt  169 75 

V.  Berryhill,  27  Iowa,   534 12 

V.  Gardiner,  7  R.  L  22 142 

BALES.  (251) 


252  CASES    CITED. 

PftC* 

Allen  V.  Goodnow,  71  Me.  420 24 

V.  Hammond,  11  Pet.  63 23 

V.  Hartfield,  76  111.  358,  361 84,  85,  115,  179 

V.  Jarvis,  20  Conn.  38 42,  158,  232 

V.  Maine  Cent.  R.  Co.,  79  Me.  327,  9  AU.  895 225,  220 

V.  Maury,  66  Ala.  10 211 

V.  Tearce,  84  Ga.  608,  10  S.  E.  1015 148 

V.  Pink,  4  Mees.  &  W.  140 162 

V.  St.  Louis  Bank,  120  U.  S.  20,  7  Sup.  Ct.  460 21 

V.  Wanamaker,  31  N.  J.  Law,  370 115 

V.  Woods,   24   Pa.    St.    76 184 

Allerd  v.  Greasert,  61  N.  Y.  1,  5 67 

AUis  V.  Billings,  6  Mete.  (Mass.)  415 12 

Alvord  V.  Collin,  20  Pick.  418,  428 138 

Ames  V.  Moir,  130  lU.  582,  22  N.  B.  535 229 

V.    Quimby,  96  U.  S.  324 33 

Amis  V.  Kyle,  2  Yerg.  31 142 

Amslnck  v.  American  Ins.  Co.,  129  Mass.  185 81 

Anderson  v.  Crisp,  5  Wash.  178,  31  Pac.  638 90 

V.  Harold,  10  Ohio,  400 76 

V.  Read,  106  N.  Y.  333,  13  N.  E.  292 212 

V.  Roberts,   18  Johns.   515 128 

Andrew  v.  Newcomb,  32  N.  Y.  417,  421 25 

Andrews  v.  Durant,  UN.  Y.  35 104 

V.  Hoover,  8  Watts,  239 228 

Angler  v.  Taunton  Paper  Co.,  1  Gray,  621 91 

Anglo-Egyptian  Nav.  Co.  v.  Rennie,  L.  R.  10  C.  P.  271 43 

Anbeuser-Busch  Brewing  Ass'n  v.  Mason,  44  Minn.  318,  46  N.  W.  558 135 

Anonymous,  1  Ld.  Raym.  182 48 

Api)erson  v.  Moore,  30  Ark.  56 28 

Appleman  v.  Fisher,  34  Md.  551 26 

Archer  v.  Baynes,  5  Exch.  625 71 

Argus  Co.  V.  Mayor,  etc.,  of  Albany,  55  N.  Y.  495 68,  71 

Armington  v.  Houston,  38  Vt  448 90 

Armitage  v.  Insole,  14  Q.  B.  728 184 

Armstrong  v.  Huffstatler,  19  Ala.  51 ; 112 

V.  Turner,  49  Md.  589 234 

Arnold  v.  Delano,  4  Gush.  33,  38,  39,  41 206-211,  216 

V.  Prout,  51  N.  H.  587 100 

V.  Richmond  Iron  Works,   1  Gray,  434 12 

Arnot  V.  Pittston  &  E.  Coal  Co.,  68  N.  Y.  566 136 

Arques  v.  Wasson,  51  Cal.  620 23 

Artcher  V.  Zeh,  5  HIU,  200 45,  66 

Ash  V.  Putnam,  1  Hill,  302 221 


CASES   CITED.  25S 

Pag* 
AAhcroft  V.  Butterworth,  186  Mass.  511 71 

V.  Morrln,  4  Man.  &  G.  450 71 

AsMey's  Case,  L.  R.  9  Eq.  263 121 

Askey  v.  Williams,  74  Tex.  294,  11  S.  W.  1101 9 

Astey  V.  Emery,  4  Maule  &  S.  262 49 

Atchison  V.  Bruflf,  50  Barb.  381 10 

Atherton  t.  Newhall,  123  Mass.  141 60 

Atkin  V.  Barwick,  1  Strange,  105 221 

Atkinson  v.  Bell,  8  Barn.  &  C.  277 39,  103 

V.  Maling,  2  Term  R.  462 181 

Atwater  v.  Clancy,  107  Mass.  369 162 

V.  Hough,  29  Conn.  508,  509 37,  42 

Atwood  V.  Cobb,  16  Pick.  227 71 

V.  Lucas,  53  Me.  508 228,  232 

Aultman  v.  Lee,  43  Iowa,  404 203 

V.  Stout,  15  Neb.  336,  19  N.  W,  464 249 

V.  Theu-er,  84  Iowa,  272 92 

Aultman,  Miller  &  Co.  v.  Cliflford,  55  Minn.  159,  56  N.  W.  593 102 

Aultman  &  Co.  v.  Kennedy,  83  Minn.  839,  23  N,  W.  528 162 

Aultman  &  Taylor  Co.  v.  Hetherington,  42  Wis.  622 249 

Austen  v.  Craven,  4  Taunt.  644 95 

Austin  V.  Cox,  60  Ga.  521 176 

V.  Nickerson,  21  Wis.  542,  543 163 

Austrian  &  Co.  v.  Springer,  94  Mich.  343,  54  N.  W.  50 237 

Avery  v.  Bowden,  5  El.  &  Bl.  714 159 

V.  Miller,  118  Mass.  500 157 

V.  Willson,  81  N.  Y.  341 190 

Ayers  v.  Burns,  87  Ind.  245 11 

Ayres  v.  Sleeper,  7  Mete.  (Mass.)  45 4 

Azemar  v.  Casella,  L.  R.  2  C.  P.  677 156 

B 

Babcock  V.  Bonnell,  80  N.  Y.  244 220 

V.  Case,  61  Pa.  St.  427 122 

V.  Trice,  18  111.  420 173,  244,  245 

Bach  y.  Smith,  2  Wash,  T.  145,  3  Pac.  831 142 

Backenstoss  v.  Stabler,  88  Pa,  St.  251,  255 48 

Bacon  v,  Cobb,  45  111.  47 160 

V.  Eccles,  43  Wis.  227,  238 56,  59,  68,  79 

V.  Lee,  4  Iowa,  490 140 

Bagley  v.  Cleveland  Rolling-MiU  Co.,  21  Fed.  159,  162 157,  247 

V.  Findlay,  82  111.  524 228,  229 

Bagster  v.  Earl  of  Portsmouth,  7  Dow.  &  R,  614 14 


254  OASES   aTED. 

Fage 

Bailey  r.  Bensley,  87  111.  556 3 

T.  Hudson  It,  R.  Co..  49  N.  Y.  70 100 

V.  Mogg,  4  Denlo,  GO 149 

r.  Ogden,  3  Johns.  899,  421 56,  63,  69 

V.  Paidridge,  134  lU.  188,  27  N.  E.  89 '. 203 

V.  Smith,  43  N.  IL  141 102 

V.  Sweeting,  9  C.  B.  (N.  S.)  843,  30  Law  J.  O.  P.  150 68,  81 

Bally  V.  De  Crespigny,  L.  R.  4  Q.  B.  180 161 

Bainbridge  v.  Pickering,  2  W.  Bl.  1325 10 

Baird  v.  Mayor,  etc.,  of  New  York,  96  N.  Y.  5G7 118 

Baker  v.  Arnot,  67  N.  Y.  448 167 

V.  Bourcicault,  1  Daly,  23 101 

T.  Burton,  31  Fed.  401 141 

V.  Dening,  8  Adol.  &  E.  94 75 

Baldey  v.  Parker,  2  Barn.  &  C.  37 50,  52,  61 

Baldwin  v.  Doubleday,  59  Vt.  7,  8  Atl.  576 88 

V.  Williams,  3  Mete.  (Mass.)  367 44 

Ballard  v.  Burgett,  40  N.  Y.  314 90 

V.  McKenna,  4  Rich.  Eq.  358 13 

Ballentine  v.  Robinson,  46  Pa.  St.  177 103 

Bamber  v.  Savage,  52  Wis.  110,  113,  8  N.  W.  609 77,  78 

Banchor  v.  Mansel,  47  Me.  58 136,  149 

Bancroft  v.  Dumas,  21  Vt  456 140 

Banfield  v.  Whipple,  14  Allen,  13.  15 126 

Bangs  V.  Dunn,  66  Cal.  72,  4  Pac.  963 138 

V.  Friezen,  36  Minn.  423,  32  N.  W.  173 30 

V.  Hornick,  30  Fed.  97 145 

Bank  of  Montreal  v.  Thayer,  7  Fed.  623 117 

Bank  of  New  Orleans  v.  Mathews,  49  N.  Y.  12 136 

Bank  of  Rochester  v.  Jones,  4  N.  Y.  497 107 

Bank  of  U.  S.  v.  Bank  of  Washington,  6  Pet.  9 19 

Banks  v.  Chas.  P.  Harris  Manuf  g  Co.,  20  Fed.  GG7 71 

V.  Werts,  13  Ind.  203 143 

Banner,  Ex  parte,  2  Ch.  Div.  278 107 

Banton  v.  Shorey,  77  Me.  48,  51 46 

Barbe  v.  Parker,  1  H.  Bl.  287 4 

Barclay  v.  Pearson  [1893]  2  Ch.  154 147 

Baring  v.  Corrie,  2  Barn.  &  Aid.  137 203 

Barkalow  v.  Pfeiffer,  38  Ind.  214 56 

Barker  v.  Dinsmore,  72  Pa.  St.  427 123 

V.  Hlbbard,  54  N.  H.  539 9 

T.  Hodgson,  3  Maule  &  S.  267 160 

V.  Roberts,  8  Greenl.  (Me.)  101 3 


CASES   CITED.  255 

Pags 

Barnard  v.  Campbell,  58  N.  Y.  73 123 

V.  Kellogg,  10  Wall.  383 168-170,  174 

Y.  Norwich  &  W.  R.  R,  Co.,  4  Cliff.  351.  Fed.  Cas.  No.  1,007 26 

V.  Poor,  21  Pick.  378 ,    88 

V.  Yates,  1  Nott  &  McC.  142 170 

Barnes  v.  Freeland,  6  Term  R.  80 221 

V.  Hathaway,  66  Barb.  453 14 

V.  McCrea,  75  Iowa,  267,  39  N.  W.  392 3 

V.  Smith,  159  Mass.  344,  34  N.  E.  403 144 

V.  Toye,  13  Q.  B.  Div.  414 10 

Barnett  v.  Stanton,  2  Ala.   195 170 

Barr  v.  Gibson,  3  Mees.  &  W.  390 23,  83 

V.  Logan,  5  Har.  (Del.)  52 229 

V.  Myers,  3  Watts  &  S.  295 184 

T.  Reitz,  53  Pa.  St.  256 181,  182 

Barrett  v.  Allen,  10  Ohio,  426 186 

V.  Delano  (Me.)  14  Atl.  288 148 

V.  Goddard,  3  Mason,  107,  Fed.  Cas.  No.  1.046 208 

y.  Pritchard,  2  Pick.  512 00 

V.  Warren,  3  HiU,   348 17 

Barron  v.  Alexander,  27  Mo.  530 112 

V.  Mullin,  21  Mton.  374 234 

Barrow,  Ex  parte,  6  Ch.  Div.  783 222 

V.  Arnaud,  8  Q.  B.  595,  604,  608,  609 232,  236 

V.  Window,  71  ni.  214 84 

Barry  v.  Coombe,  1  Pet.  640 72 

V.  Croskey,  2  Johns.  &  H.  1,  17,  22 117 

Bartlett  v.  Bailey,  59  N.  H.  408 7,  8 

V.  Blanchard,  13  Gray,  429 239 

V.  Purnell,  4  Adol.  &  E.  792 78 

Barton  v.  Crofts,  33  Law  J.  C.  P.  189 68 

V.  Kane,  17  Wis.  38 102 

V.  McKelway,  22  N.  J.  Law,  165 187 

Bassett  v.  Brown,  105  Mass.  551,  557 124 

V.  Camp,   54  Vt   232 63 

Basten  v.  Butter,  7  East,  479 246 

Batchelder,  In  re,  2  Lowell,  245,  Fed.  Cas.  No.  1,099 208,  210,  211 

Bates  V.  Cheesbro,  32  Wis.  594 65 

V.  Clifford,  22  Minn.  52 144 

Batsford  v.  Every,  44  Barb.  618 142 

Batturs  v.  Sellers,  5  Har.  &  J.  117 76,  77 

Baumann  v.  James,  3  Ch.  App.  508 74 

Baxter  v.  Earl  of  Portsmouth,  5  Barn.  &  0.  170 14 

Bayard  v.  Shunk,  1  Watts  &  S.  92 202 


256  CASES    CITED. 

Pac* 

Bayne  v.  Wiggins.  139  U.  S.  210,  11  Sup.  Ct.  521 74 

Beall  V.  White,  94  U.  S.  882 26 

Beals  V.  See,  10  Pa.  St.  56 18 

Bean  v.  Smith,  2  Mason,  252,  278,  Fed.  Cas.  No.  1,174 120,  128 

Beard  v.  Webb,  2  Bos.  &  P.  93 15 

Beaucbamp  v.  Archer,  58  Cal.  431 84 

Beaumont  v.  Bremgeri,  5  C.  B.  301 56,  62 

Beavan  v.  McDonnell,  9  Exch.  809,  10  Exch.  184 12,  13 

Becker  v.  Hallgarten,  86  N.  Y.  167 222 

Bockwith  V.  Talbot,  95  U.  S.  289 74 

Beeler  v.  Young,  1  Bibb,  519 9,  11 

Beeman  v.  Banta,  118  N.  Y.  538,  23  N.  E.  887 249 

Beer  v.  Walker,  46  Law  J.  C.  P.  677,  25  Wkly.  Rep.  880 173 

Beers  v.  Crowell,  Dud.  (Ga.)  28 44 

V.  Williams,  16  111.  G9 171 

Begbie  v.  Phosphate  Sewage  Co.,  L.  R.  10  Q.  B.  491,  1  Q.  B.  Div.  679 110 

Behn  v.  Burness,  3  Best  &  S.  751,  32  Law  J.  Q.  B.  204,  205 152,  158,  246 

Beime  v.  Dord,  5  N.  Y,  99 174 

Belcher  v.  CosteUo,  122  Mass.  189 113 

Bolding  V.  Frankland,  8  Lea,  67 115 

Bell  V.  Cafiferty,  21  Ind.  411 123 

V.  Dagg,  60  N.  Y.  528 110 

V.  Moss,   5   Whart.   189 215 

V.  Offutt,    10  Bush,    632 228 

V.  Reynolds,   78  Ala.   511 237 

Bement  v.  Smith,  15  Wend.  493 103 

Bemis  v.  Leonard,  118  Mass.  502 186 

Benedict  v.  Field,  16  N.  Y.  595 208 

V.  Scaettle,  12  Ohio  St.  515 216,  217 

Benford  v.  Schell,  55  Pa.  St.  393 182 

Beninger  v.  Corwln,  24  N.  J.  Law,  257 112 

Benjamin  v.  Elmira,  J.  &  C.  R.  Co.,  49  Barb.  441 26 

Bennett  v.  Adams,  2  Cranch,  C.  C.  551,  Fed.  Cas.  No.  1,316 33 

V.  Buchan,  76  N.  Y.  386 164 

V.  Hull,   10  Johns.  364 37 

Bent  V.  Cobb,  9  Gray,  397 77 

V.  Manning,  10  Vt.  225 11 

Bentall  v.  Burn,  3  Barn.  &  C.  423 63 

Bergman  v.  Indianapolis  &  St  L.  R.  Co.,  104  Mo.  77, 15  S.  W.  992 106 

Bemdtson  v.  Strang,  L.  R.  4  Eq.  481,  489,  3  Ch.  App.  588,  591. . .  .217-219,  225 

Bernhardt  v.  Walls,  29  Mo.  App.  206 44 

Berolles  v.  Ramsay,  Holt,  N.  P.  77 9 

Berry  v.  NaU,  54  Ala.  446 187 

Bertelson  v.  Bower,  81  Ind.  512 *    84 


OASBS   CITED.  257 

Pag» 

Berthold  v.  Seevers  Manurg  Co.  (Iowa)  56  N.  W.  669 200 

Best  V.  Flint,  58  Vt  543,  5  Ati.  192 244 

Bethell  v.  Clark,  19  Q.  B,  Div.  553,  affirmed  20  Q.  B.  Dlv.  615 221 

Bethel  Steam-MiU  Co.  v.  Brown,  57  Me.  1,  9,  18 87,  182 

Bettlnl  V.  Gye,  1  Q.  B.  Div.  187 152 

Beurmann  v.  Van  Buren,  44  Mich.  496 125 

Bibb  V.  AUen,  149  U.  S.  481,  13  Sup.  Ct.  950 69,  79 

Bickel  V.  Sheets,  24  Ind.  1 135. 

Bicknall  v.  Waterman,  5  R.  I.  43 202 

Biddlecombe  v.  Bond,  4  Add.  &  E.  332 216- 

Bigge  V.  Parkinson,  7  Hurl.  &  N.  955,  31  Law  J.  Exch.  301 173,  176- 

Bigger  v.  Bovard,  20  Kan.  204 242 

Biggs  V.  Barry,  2  Curt.  259,  Fed.  Cas.  No.  1,402 222 

Bigler  v.  Flickinger,  55  Pa.  St.  279 115 

Bigley  v.  Risher,  63  Pa.  St  152 84 

BiU  V.  Bament,  9  Mees.  &  W.  36,  37 52,  55,  61,  69 

Billin  V.  Henkel,  9  Colo.  394,  13  Pac.  420 57 

Billmeyer  v.  Wagner,  91  Pa.  St.  92 239 

Bingham  v.  Maicy,  15  111.  295 167 

Bird  V.  Boulter,  4  Bam.  &  Adol.  443 78 

V.  Brown,  4  Exch.  786 216,  223 

V.  Muhllnbrlnk,  1  Rich.  Law,  199 42 

V.  Mumoe,  66  Me.  337 G8,  69 

Blrks  V.  French,  21  Kan.  238 142 

Bisbee  v.  McAUen,  39  Minn.  143,  39  N.  W.  299 140,  141 

Bishop  V.  ShiUito,  2  Barn.  &  Aid.  329 80 

BisseU  V.  Balcon,  39  N.  Y.  275,  279 84 

Bixler  v.  Saylor,  68  Pa.  St.  149 172 

Blachford  v.  Preston,  8  Term  R.  89 138 

Blackburn  v.  Reilly,  47  N.  J.  Law,  290, 1  Atl.  27 194 

Blackman  v.  Pierce,  23  Cal.  509 221 

Black  River  Lumber  Co.  v.  Warner,  93  Mo.  374,  386,  6  S.  W.  210 228,  233 

Blaisdell  v.  Holmes,  48  Vt.  492 14 

Blake  v.  Sawin,  10  Allen,  340 ; 12(> 

Blanchard  v.  Cooke,  144  Mass.  225,  11  N.  E.  83 2& 

Blattenberger  v.  Holman,  103  Pa.  St.  555 110 

Blenkinsop  v.  Clayton,  7  Taunt.  597 65- 

Bliss  V.  Lawrence,  58  N.  Y.  442 13S 

Block  V.  McMurry,  56  Miss.  217 14G 

Blood  V.  Goodrich,  9  Wend.  68 7S 

V.  Palmer,  11  Me.  414 4 

Bloom  V.  Richards,  2  Ohio  St.  387 142 

Bloomingdale  v.  Memphis  <StC.Il.  Co.,  6  Lea,  616 216,  226 

SALES— 17 


258  CASES    CITED. 

Page 
Bloxam  ▼.  Morley,  4  Barn.  &  O.  951 , 208 

V.  Sanders,  4  Barn.  &  O.  941,  948 179,  208 

Bloxsome  v.  Williams,  3  Barn.  &  C.  232 142 

Bloyd  V.  Pollocks,  27  W.  Va.  75 99,  100,  195 

Blum  V.  The  Caddo,  1  Woods,  Oi,  Fed.  Cas.  No.  1.573 100 

Blunt  V.  Little,  3  Mason.  107,  110,  Fed.  Cas.  No.  1,578 84 

Blydenburgh  v.  Welsh.  Baldw.  331.  Fed.  Cas.  No.  1,583 113,  185 

Boardman  v.  Cutter,  128  Mass.  388 44 

V.  Spooner,  13  Allen,  353 72 

V.  Thompson,   25  Iowa,   487 139 

Bog  Lead  Min.  Co.  v.  Montague,  10  C.  B.  (N.  S.)  481.  489 54 

Bohn  Manuf  g  Co.  v.  Hynes,  83  Wis.  388,  53  N.  W.  684 208 

Bohtlingk  v.  Inglis,  3  Bast,  381 218 

Bolln  V.  Huflfnagle,  1  Rawle,  9 218 

Bollman  v.  Burt,  61  Md.  415 194 

Bolton  V.  Lancashire  &  Y.  Ry.  Co.,  L.  R.  1  C.  P.  431,  440 220 

V.  Riddle,  35   Mich.   13 185 

Bond  V.  Greenwald,  4  Heisk.  453 86 

Boody  V.  McKenney,  23  Me.  517 8 

Boorman  v.  Nash,  9  Barn.  &  G.  145 232 

Booth  V.  Spuyten  Duyvill  Rolling  MUl  Co.,  60  N.  Y.  487,  496 160,  239,  240 

V.  Tyson,  15  Vt.  515,  518 31,  190 

Boothby  v.  Plaisted,  51  N.  H.  436,  438 174,  175 

V.  Scales,  27  Wis.  626 176,  197,  244 

Borden  v.  Borden,  5  Mass.  67 158 

Borrekins  v.  Bevan,  3  Rawle,  23 156,  171 

Borrowman  v.  Drayton,  2  Exch.  Dlv.  15 156 

Borrowscale  v.  Bosworth,  99  Mass.  379 56 

Boston  Ice  Co.  v.  Potter,  123  Mass.  28 28 

Boston  &  M.  R.  Co.  v.  Bartlett,  3  Cush.  224 28 

Bostwick  V.  Leach,  3  Day,  476 47 

Boswell  V.  Green,  25  N.  J.  Law,  390,  398 88 

V.  Kilbom,  15  Moore,  P.  C.  309,  8  Jur,  443 86 

Bouchell  V.  Clary,  3  Brev.  194 11 

Boughton  V.  Standish,  48  Vt.  594 200 

Boulter  v.  Amott,  1  Cromp.  &  M.  333 210 

Boulton  V.  Jones,  2  Hurl.  &  N.  564,  27  Law  J.  Exch.  117 28 

BouteUe  v,  Melendy,  19  N.  H.  196 143 

Bowdell  V.  Parsons,  10  East,  359 160 

Bowditch  V.  New  England  Ins.  Co.,  141  Mass.  292,  295.  4  N.  E.  798 140 

Bowen  v.  Burk,  13  Pa.  St.  146 89,  210 

V.  Sullivan.  62  Ind.  281 32 

Bower  v.  Fenn,  90  Pa.  St.  359 116 

Bowers  V.  Anderson,  49  Ga.  143 63 

Bowery  Nat  Bank  v.  Wilson,  122  N.  Y.  478,  25  N.  E.  855 138 


CASES   CITED.  259 

Page 

Bowes  y.  Shand,  2  App.  Cas.  455,  463,  480 151,  155 

Bowkerv.  Hoyt,  18  Pick.  555 31,  190 

Bowman  v.  Conn,  8  Ind,  58 50 

Dowry  v.  Bennet,  1  Camp.  348 135 

Boyce  v.  Washburn,  4  Hun,  792 46 

Boyd  V.  Eaton,  44  Me.  51 148 

V.  Gunnison,  14  W.  Va.  1 185 

V.  Wilson,  83  Pa.  St.  319 174 

Boydell  v.  Drummond,  11  East,  142 74 

Boyden  v.  Boyden,  9  Mete.  (Mass.)  519 8 

Boyer  v.  Berryman.  123  Ind.  451,  24  N.  E.  249 13 

Boynton  v.  Page,  13  Wend.  425 142 

V.  Veazie,  24  Me.  286 181 

Brackett  v.  Blake,  7  Mete.  (Mass.)  335 138 

Braddock  Glass  Co.  v.  Irwin,  153  Pa.  St.  440,  25  Atl.  490 87,  195 

Bradford  v.  Manly,  13  Mass.  139 174,  244 

Bradley  v.  Holdsworth,  3  Mees.  &  W.  422 44 

V.  King,  44  111.  339 194 

V.  Michael,  1  Ind.  551 206 

V.  Pratt,  23  Vt.  378 11 

V.  Rea,  14  Allen,  20,  103  Mass.  188 143,  245 

V.  Wheeler,  44  N.  Y.  495 88 

Bradshaw  v.  Warner,  54  Ind.  58 90 

Brady  v.  Whitney,  24  Mich.  154 32 

Bragg  V.  Beers,  71  Ala.  151 183 

V.  Morrill,  49  Vt.  45 172 

Braitch  v.  Gueliek,  37  Iowa,  212 148 

Brand  v.  Focht,  42  N.  Y.  409 53 

V.  Henderson,  107  lU.  141 232 

Brandon  v.  Nesbitt,  6  Term  R.  23 130 

Brandt  v.  Bowlby,  2  Barn.  &  Adol.  932 89,  106 

Branson  v.  Turner,  77  Mo.  489 164,  244 

Brantley  v.  Wolf.  60  Miss.  420 7 

Braunn  v.  Keally,  146  Pa.  St.  519,  23  Atl.  389 29,  149 

Brawley  v.  U.  S.,  96  U.  S.  168 191,  192 

Brayshaw  v.  Eaton,  7  Scott,  183 10 

Breed  v.  Cook,  15  Johns.  241 202 

Breen  v.  Moran,  51  Minn.  525,  53  N.  W.  755 172,  245 

Brenton  v.  Davis,  8  Blaekf.  317 172 

Brett  V.  Carter,  2  Low.  458,  Fed.  Cas.  No.  1,844 26 

Brewster  v.  Burnett,  125  Mass.  68 122 

V.  Leith,  1  Minn.  56  (Gil.  40) 64 

Bricker  v.  Hughes,  4  Ind.  146 48 

Brick.  Presbyterian  Church  v.  Mayor,  etc.,  of  City  of  New  York,  6  Cow.  538  161 


260  CASES   CITED. 

Bridpeford  t.  Adams,  4B  Ark.  136 120 

Brigg  V.  HUton,  99  N.  Y.  517,  3  N.  B.  51 248 

Brlgga  V.  Light  Boat,  7  Allen,  287 104 

V.  Munchon,  56  Mo.  467 70 

V.  U.  S.,  143  U.  S.  346,  12  Sup.  Ct.  391 25 

Brigham  v.  Fayerweather,  144  Mass.  52,  10  N.  E.  735 13 

V.  Rotelsdorf,  73  Iowa,  712,  36  N.  W.  715 174 

Brlndley  v.  Cilgwyn  Slate  Co.  (1S86)  55  Law  J.  Q.  B.  Div.  68 21S 

Brlnsmead  v.  Ilarrisou,  L.  11.  6  C.  P.  584,  affirmed  In  L.  R.  7  C.  P.  547. . . .     31 

Britain  v.  Rossiter,  11  Q.  B.  Div.  123,  127 81 

British  Columbia  &  V.  I.  Spar,  Lumber  &  Sawmill  Co.  v.  Nettleship,  L.  R. 

3  C.  P.  499,  37  Law  J.  C.  P.  235 239 

British  Empire  Shipping  Co.  v.  Somes,  El.,  Bl.  &  EL  353,  367,  27  Law  J. 

Q.  B.  397,  28  Law  J.  Q.  B.  220,  8  H.  L.  Cas.  338,  30  Law  J.  Q.  B.  229 206 

Brittain  v.  MclCay,  1  Ired.  265 48 

Broadwater  v.  Dame,  10  Mo.  277 14 

Brock  V.  Knower,  37  Hun,  609 53 

V.  O'Donnell,  45  N.  J.  Law,  441 81 

Brogden  v.  Marriott,  2  Bing.  N.  C.  473 153 

Brooke  Iron  Co.  v.  O'Brien,  135  Mass.  442,  447 222,  225 

Brooker  v.  Scott,  11  Mees.  «&  W.  67 9,  10 

Brooks  V.  Powers,  15  Mass.  247 129 

Bronson  v.  Wiman,  10  Barb.  406 41 

Brown  t.  Bellows,  4  Pick.  179,  189 33 

V.  Berry,  14  N.  H.  459 102 

V.  Bigelow,  10  Allen,  242 164 

V.  Blunt,  72  Me.  415 US 

V.  Browning,  15  R.  I.  423,  7  Atl.  403 142 

V.  Duncan,  10  Barn.  &  C.  93 141 

V.  Foster,   113   Mass.   136 154 

V.  Foster,  108  N.  Y.  287,  387,  15  N.  E.  608 199,  248 

V.  Haynes,  52  Me.  578 91 

V.  Hitchcock,  28  Vt.  452 8 

V,  Holbrook,    4    Gray    (Mass.)  102 4 

V.  Johnson,  10  Mees.  &  W.  331 186 

V.  Sanborn,  21  Minn.  402 42,  40,  50 

V.  Warren,  43  N.  H.  4.30 64 

V.  Whipple,  58  N.  H.  229 74 

Browne  v.  Hare,  3  Hurl.  &  N.  484,  27  Law  J.  Exch.  372,  4  Hurl.  &  N.  822, 

29  Law  J.  Exch.  6 100,  106 

Brownfleld  v.  Johnson,  128  Pa.  St.  254,  268,  18  Ati.  543 188 

Browning  v.  Magill,  2  Har.  &  J.  308 18 

Brownlee  v.  Bolton.  44  Mich.  218,  6  N.  W.  657 197,  22a 

Brua's  Appeal,  55  Pa.  St  294 144 


OASES  crrsD*  261 

Page 

Brunswick  &  Balke  C5o.  v.  Valleau,  50  Iowa,  120 135 

Brush  V.  Sweet,  38  Mich.  574 139 

Bryan  v.  Lewis,  Ryan  &  M.  386 26 

Bryant  v.  Isburgh,  13  Gray,  607 244 

V.  Pember,  45  Vt.  4S7 110 

T.  Richardson,  L.  R.  3  Exch.  93,  note  3,  14  Law  T.  (N.  S.)  24 9 

V.  Whitcher,  52  N.  H.  158 17,  19 

Buckley  v.  Furnlss,  15  Wend.  137,  17  Wend.  504 213,  217,  220 

V.  Humason,  50  Minn.  195,  52  N.  W.  385 141 

Buckman  v.  Levi,  3  Camp.  414 196 

Buddie  V.  Green,  27  Law  J.  Exch.  33,  34 26 

Buel  V.  MUler,  4  N.  H.  196 73 

Buffalo  Barb-Wire  Co.  v.  PhUllps,  67  Wis.  129,  30  N.  W.  295 245 

Buffington  v.  Gerrlsh,  15  Mass.  158 123 

Buffum  V.  Deane,  8  Gush.  41 19 

Bughman  v.  Central  Bank,  159  Pa.  St.  94,  28  Atl.  209 115 

Bulkley  v.  Andrews,  39  Conn.  70 3 

V.  Morgan,  46  Conn.  393 120 

Bull  V.  Griswold,  19  lU.  631 48 

V.  Robison,  10  Exch.  342,  24  Law  J.  Exch.  165 173,  197 

Bullock  V.  Tschergl,  4  McCrary,  184,  13  Fed.  345 61 

Bunge  V.  Koop,  48  N.  Y.  225 159 

Bunney  v.  Poyntz,  4  Barn.  &  Adol.  568 208 

Burchfield  v.  Moore,  3  El.  &  Bl.  683,  23  Law  J.  Q.  B.  261 110 

Burdlck  v.  Sewell,  13  Q.  B.  Dlv.  175,  10  App.  Cas.  93 2 

Burghart  v.  Hall,  4  Mees.  &  W.  727 10 

Burnby  v.  Bollett,  16  Mees.  &  W.  644 173 

Bui-nell  V.  Marvin,  44  Vt.  277 91 

V.  Robertson,  5  GUman,  282 130 

Burnham  v.  Kidwell,  113  HI.  425 13 

Burnley  v.  Tufts,  66  Miss.  49,  5  South.  627 91 

Burrell  v.  Highleyman,  33  Mo.  App.  183 42 

Burrill  v.  Stevens,  73  Me.  395 115 

Burrows  v.  Whittaker,  71  N.  Y.  291 88 

Burt  V.  Dewey,  40  N.  Y.  283 167 

V.  Myer,  71  Md.  467,  18  Atl.  796 144 

Burton  v.  Bah-d,  44  Ark.  556 100 

v.  Stewart,  3  Wend.  236,  239 121,  124 

Buschman  v.  Codd.  52  Md.  207 113 

Bush  V.  Holmes,  53  Me.  417 52 

Bushel  V.  Wheeler,  15  Q.  B.  442 56 

Busk  V.  Davis,  2  Maule  &  S.  397 95 

Bussey  v.  Barnett,  9  Mees.  &  W.  312 84 

Bussing  V.  Rice,  2  Gush.  48 123 


262  CASES   CITED. 

Page 

Buswell  r.  BIcknell,  17  Me.  344 n.i 

Butler  V.  Butler,  77  N.  Y.  472,  475 158,  233 

V.  Dorman,  68  Mo.  208,  300 203 

V.  Hai^lit,  8  Wend.  535 202 

V.  Hildreth,  5  Mete.  (Mass.)  49 120 

V.  Lee,  11  Ala.  885 143 

V.  Moore,  68  Ga.  780 240 

V.  Moore,  73  Me.  151 125,  128 

V.  Northumberland.  50  N.  H.  33 175 

V.  School  Dist.,  149  Pa.  St.  351,  24  Ati.  308 92 

T.  Thompson,  92  U.  S.  412 79 

V.  White,  25  Minn.  432 126 

Butterfield  v.  Lathrop,  71  Pa.  St.  225 3 

Butters  v.  Haugwout,  42  111.  18 123 

Butterworth  v.  McKinly,  11  Humph.  206 103 

Byassee  v.  Reese,  4  Mete.  (Ky.)  372 47 

Byers  v.  Chapin,  28  Ohio  St.  300 172,  242 

Byrd  v.  Hall,  41  N.  Y.  &46 114 

Byrne  v.  Van  Tlenhoven,  5  C.  P.  DIv.  344 28 

Byrnes  v.  Volz,  53  Minn.  110,  54  N.  W.  942 125,  128 

0 

Cabeen  v.  Campbell,  30  Pa.  St.  254 221 

Cabot  V.  Christie,  42  Vt.  121 116 

Cadogan  v.  Kennett,  1  Cowp.  432 125 

Cahen  v.  Piatt,  69  N.  Y.  348 236,  237 

Cain  V.  McGuIre,  8  B.  Mon.  340 47 

Calahan  v.  Babcock,  21  Ohio  St.  281 217 

Calcutta  &  B.  S.  Nav.  Co.  v.  De  Mattos,  32  Law  J.  Q.  B.  (N.  S.)  322,  328, 

335 87,  100,  234 

Caldwell  v.  Ball,  1  Term  R.  205 224 

V.  Walters,  18  Pa.  St  79 19 

Calkins  v.  Falk,  1  Abb.  Dec.  291 69,  74 

Call  V.  Seymour,  40  Ohio  St  670 90 

Callaghan  v.  Myers,  89  111.  566,  570 83 

Callanan  v.  Chapin,  158  Mass.  113,  32  N.  E.  941 71 

Callmeyer  v.  Mayor,  etc.,  83  N.  Y.  116 192 

Camden  Consolidated  Oil  Co.  v.  Schlens,  59  Md.  31 236 

Camden  Iron  Works  v.  Fox,  34  Fed.  200 155 

Cameron  v.  WeUs,  30  Vt.  633 186 

Camp  V.  Hamlin,  55  Ga.  259 228,  232 

V.    Wood,  10  Watts.  118 19 


CASES  CITED,  20 3 

Pag» 

Campbell  r.  Fleming,  1  Adol.  &  B.  40 121 

V.  Mersey  Docks  &  Harbour  Board,  14  0.  B.  (N.  S.)  412 98 

V.  Segars,  81  Ala.  259,  1  South.  714 141 

V.  Young,  9  Bush.  240 143 

Canada  v.  Canada,  6  Cush.  15 122 

Canda  y.  Wick,  100  N.  Y.  127,  2  N.  B.  381 159 

Cannan  v.  Bryce,  3  Bam.  &  Aid.  179 135 

Cantlne  v.  Phillips,  5  Har.  (Del.)  428 10 

Card  V.  Hope,  2  Barn.  &  C.  6B1 138 

Oardweli  v.  McGleUand,  3  Sneed,  150 112 

Carleton  v.  Woods,  28  N.  H.  290 148 

Carman  v.  Smick,  15  N.  J.  Law,  252 37 

Carondelet  Iron  Works  v.  Moore,  78  Hi.  65 200 

Carpenter  v.  Carpenter,  45  Ind.  142 7 

V.  Galloway,  73  Ind.  418 50,  73 

V.  Graham,  42  Mich.  191,  3  N.  W.  974 9G 

V.  McCiure,  39  Vt.  9 128 

V.  Rodgers,  61  Mich.  384,  28  N.  W.  156 14 

V.  Scott,  13  R  I-  477 90 

Carr  v.  Briggs,  156  Mass.  78,  81,  30  N.  E.  470 126 

V.  Clough,  26  N.  H.  280 7 

V.  DuvaU,  14  Pet.  77 27 

Carrier  v.  Sears,  4  Allen,  336 12 

Carroll  Porter  Boiler  &  Tank  Co.  y.  Columbus  Mach.  Co.,  5  C.  C.  A.  190, 

55  Fed.  451 237 

Carter  v.  Crick,  4  Hurl.  &  N.  412,  28  Law  J.  Exch.  238 174 

y.  Toussaint,  5  Barn.  &  Aid.  855 62 

y.  Willard,  19  Pick.  1,  9,  11 131,  132 

Caryer  y.  Lane,  4  E.  D.  Smith,  168 53 

Case  y.  Green,  5  Watts,  262 187 

y.  Stevens,  137  Mass.  551 248 

Case  of  Market-Overt,  5  Coke,  83b IB 

Cason  y.  Cheely,  6  Ga.  554 37,  42 

Cassidy  y.  Le  Fevre,  45  N.  Y.  562 238 

Castanola  v.  Missouri  Pac.  R.  Co.,  24  Fed.  267 224 

Castle  y.  Sworder,  29  Law  J.  Exch.  235,  30  Law  J.  Exch.  310,  312,  6  Hurl. 

&  N.  832 52,  58,  61,  02,  197 

Cathcart  v.  Keirnaghan,  5  Strob.  129 78 

Catlin  V.  Haddox,  49  Conn.  492 8 

y.  Tobias,  26  N.  Y.  217 100 

Catling  y.  King,  5  Ch.  Div.  660 69 

Caton  y.  Caton,  L.  R.  2  H.  L.  127 76 

Catterall  v.  Hindle,  L.  R.  1  C.  P.  186,  35  Law  J.  C.  P.  161 203 

Caulkins  v.  Hellman,  47  N.  Y.  449 52,  57,  59 


264  CASES   CITED, 

Page 

Oi  Aiiltmnn  &  Co.  v.  Kennedy.  33  Minn.  339.  23  N.  W.  528 162 

Cave  V.  Hastings,  7  Q.  B.  Div.  125 T4 

Cayuga  County  Nat  Bank  v.  Daniels,  47  N.  Y.  631 107 

Central  Trust  Co.  v.  Arctic  Ice  Macli.  Manuf  g  Co.,  77  Md.  202,  26  Atl.  493. .  245 

Chadsey  v.  Greene,  24  Conn.  502 164 

Chalmers,  Ex  parte,  8  Ch.  App.  289 213 

Chamberlta  v.  Fuller,  59  Vt.  247,  9  AtL  832 113,  122,  324 

Chamberlyn  v.  Delarlve,  2  Wlls.  353 66 

Chambers  v.  Davidson,  L.  R.  1  P.  C.  296,  4  Moore,  P.  C.  (N.  S.)  158 207 

Champion  v.  Plummer,  1  Bos.  &  P.  (N.  R.)  252 69 

Chaniplln  v.  Rowley,  18  Wend.  187,  13  Wend.  258 31,  190 

Champney  v.  Smith,  15  Gray,  512 19 

Chancellor  v.  Wiggins,  4  B.  Mon.  201 167 

Chandler  v.  Coe,  54  N.  H.  561 70 

V.  Simmons,  97  Mass.  508 7 

Chanter  v,  Hopkins,  4  Mees.  &  W.  399 30,   155,   170,  172 

Chaplin  v.  Rogers,  1  Bast,  192,  195 50,  181 

Chapman  v.  Cole,  12  Gray,  141 17,  109 

V.  Ingram,  30  Wis.  290,  294,  295 228,  232 

V.  Morton,  11  Mees.  &  W.  534 199,  200 

V.  Murch,  19  Johns.  290 163 

V.  Shepard,  39  Conn.  413 95 

V.  Speller,  14  Q.  B.  621,  19  Law  J.  Q.  B.  241 167 

V.  Weimer,  4  Ohio  St.  481 24 

Chappie  V.  Cooper,  13  Mees.  &  W.  256 . .  «  « 9 

Chase  v.  Burkholder,  18  Pa.  St.  48 148 

V.  Denny,  130  Mass.  566 24 

V.  Ingalls,  122  Mass.  381 90 

V.  Washburn,  1  Ohio  St  244,  6  Am.  Law  Rev.  450 8,  4 

Cheney  v.  Duke,  10  GiU  &  J.  11 135 

Cheshire  v.  Barrett,  4  McCord,  241 8 

Chestnut  v.  Harbaugh,  78  Pa.  St.  473 146 

Chew  V.  Bank  of  Baltimore,  14  Md.  299 ^ 12 

Chicago  V.  Greer,  9  Wall.  726 232 

Chicago  Dock  Co.  v.  Foster,  48  111.  507 123 

Chickering  v.  Bastress,  130  111.  206,  22  N.  E.  542 4 

Chidell  V.  Galsworthy,  6  C.  B.  (N.  S.)  471 24 

Chinery  v.  Viall,  5  Hurl.  &  N.  288,  29  Law  J.  Exch.  180 241,  242 

Chrysler  v.  Canaday,  90  N.  H.  272,  278 113 

Church  V.  Mulr,  33  N.  J.  Law,  318 128 

OhurchlU  v.  Holton,  38  Minn.  519,  38  N.  W.  611 190 

V.  Merchants'  Bank,  19  Pick.  532 186 

Chynoweth  v.  Tenney,  10  Wis.  341 24 

City  Nat  Bank  v.  Tufts,  63  Tex.  113 ...  ^ , . .  ^ ►. .     90 


CASES   CITED.  2G5 

Page 

Clafllny.  Boston  &  L.  R.  Co.,  7  Allen,  341 ^     99 

V.  Carpenter,  4  Aletc.  (Mass.)  580 ......^»^     46 

Claghorn  v.  Lingo,  62  Ala."230 ^ »^ .  163 

Clap  V.  Thayer,  112  Mass.  296 191 

Clapp  V.  Sohmer,  55  Iowa,  273,  7  N.  W.  639 224 

Clark  V.  Baker,  5  Mete.  (Mass.)  452,  11  Mete.  (Mass.)  186 Ill,  188,  189 

V,  Bulmer,  11  Mees.  &  W.  243 43 

V.  Draper,  19  N.  H.  419 207 

V.  Labreche,  63  N.  H.  397 56 

V.  Moore,  3  Mich.  55 190 

V.  Mumford,  3  Camp.  37 39 

V.  Nichols,  107  Mass.  547 40 

V.  Pinney,  7  Cow.  681 236 

V.  Smith,  88  111.  298 203 

T.  Wheeling  Steel  Works,  3  C.  C.  A.  600,  53  Fed.  494 193 

Clarke  v.  Brown,  77  Ga.  606 147 

V.  Dickson,  EL,  Bl.  &  El.  148 121 

T.  Foss,  7  Biss.  541,  Fed.  Cas.  No.  2,852 26 

V.  Hutchins,  14  East,  475 196 

V.  Spence,  4  Adol.  &  E.  448 104 

V.  Westrope,  18  C.  B.  765,  25  Law  J.  0.  P.  287 33,  154 

Clarkson  v.  Stevens,  106  U.  S.  505,  1  Sup.  Ct.  200 104 

Clason's  Ex'rs  v.  Bailey,  14  Johns.  484 74,  75,  76,  79 

Clay  V.  Yates,  1  Hurl.  &  N.  73,  25  Law  J.  Exch.  237 .39 

Clayton  v.  Andrews,  4  Burrows,  2101 37 

Clem  V.  Newcastle  &  D.  R.  Co.,  9  Ind.  488 115 

Clemens  v.  Clemens,  28  Wis.  637 128 

Clementson  v.  Grand  Trunk  Ry.  Co.,  42  U.  C.  Q.  B.  263 224 

Clement  &  Hawkes  Manuf  g  Co.  v.  Meserole,  107  Mass.  362 159 

Cleveland  v.  Sterrett,  70  Pa.  St.  204 235 

Cleveland  RoIling-MiU  v.  Rhodes,  121  U.  S.  255,  7  Sup.  Ct.  882 

155,  1S9,  193,  195 

Clifford,  In  re,  2  Sawy.  428,  Fed.  Cas.  No.  2,893 63 

Clough  v.  London  &  N.  W.  Ry.  Co.,  L.  R.  7  Exch.  26,  34-36 22,  119-121,  124 

Clow  V.  Woods,  5  Serg.  &  R.  275 129 

Coate  V.  Terry,  24  U.  C.  C.  P.  571 78 

Coates  V.  Wilson,  5  Esp.  152 ^       9 

Cobb  V.  Billings,  23  Me.  470 142 

Cobbold  V.  Caston,  1  Bing.  399,  8  Moore,  456 49 

Coburn  v.  Odell,  30  N.  H.  540 148 

V.  Pickering,  3  N.  H.  428 129 

Cochran  v.  Stewart,  21  Minn.  435 123 

Cockburn  v.  Ashland  Lumber  Co.,  54  Wis.  619,  627,  12  N.  W.  49 236,  240 

Cockerell  v,  Aucompte,  26  Law  J.  O.  P.  194 191 


266  OASES   CITED. 

PaK» 

Cockrell  v.  Thompson.  85  Mo.  510 145 

CoddiBgton  v.  Goddard,  16  Gray,  430,  442 71,  76,  78,  7» 

Coe  V.  Tough,  116  N.  Y.  273,  22  N.  E.  550 74 

CoCfman  v.  Hampton,  2  Watts  &  S.  377 50 

Cogel  V.  Kniseley,  89  111.  598 112 

CojTgill  V.  Hartford  &  N.  H.  R.  Co.,  3  Gray,  545 90 

Cohn  V.  Ammidown,  120  N.  Y.  398,  24  N.  E.  944 IGG 

Cole  V.  Berry,  42  N.  J.  Law,  308 89,  90 

V.  Cassidy,  138  Mass.  437 116 

V.  Northwestern  Bank,  L.  R.  9  C.  P.  470,  affirmed  L.  R.  10  C.  P.  354.. 

20,     21 

Coleman  v.  First  Nat.  Bank,  53  N.  Y.  388 70 

V.  Gibson,  1  Moody  &  R.  168 56 

Collins  V.  Delaporte,  115  Mass.  159,  162 232 

V.  Evans,  5  Q.  B,  820 115 

V.  Jackson,  54  Mich.  186,  19  N.  W.  947 113 

V.  Ralli,  20  Hun,  246,  85  N.  Y.  637 21 

V.  Townsend,  58  Cal.  608 124 

Collyer  v.  Isaacs,  19  Ch.  Div.  342 25 

Colonial  Bank  v.  Whinney,  30  Ch.  Div.  261,  286 44 

Colonial  Ins.  Co.  v.  Adelaide  M.  Ins.  Co.,  12  App.  Cas.  128,  138 31,  190 

Columbus  Construction  Co.  v.  Crane  Co.,  3  C.  C.  A.  216,  9  U.  S.  App.  46, 

52  Fed.  635 29 

Colvin  V.  Williams,  3  Har.  &  J,  38 44 

Combs  V.  Bateman,  10  Barb.  573 66 

Comey  v.  Pickering,  63  N.  H.  126 22,  128 

Commercial  Bank  v.  Hurt,  99  Ala.  130,  12  South.  568,  572 21 

Commercial  Nat.  Bank  v.  Gillette,  90  Ind.  268 95 

Commins  v.  Scott,  L.  R.  20  Eq.  11 69 

Commonwealth  v.  Clark,  14  Gray,  367 4 

v.  Fleming,  130  Pa.  St.  138,  18  Atl.  622 101 

V.  Ray,  3  Gray,  441,  447 75 

Comstock  V.  Sanger,  51  Mich.  497,  16  N.  W.  872 247 

V.  Scales,   7  Wis.   159 25 

Conable  v.  Lynch,  45  Iowa,  84 . , 4 

Conard  v.  Atlantic  Ins,  Co.,  1  Pet  386,  389 131 

Conaway  v.  Sweeney,  24  W.  Va.  643,  649 77 

Conderman  v.  Smith,  41  Barb.  404 25 

Cougar  V.  Chamberlain,  14  Wis.  258 162 

V.  Galena  &  C.  U,  R.  Co.,  17  Wis.  477 100 

Congress  &  Empire  Spring  Co.  v.  Knowlton,  103  U.  S.  49 147 

Congreve  v.  Evetts,  10  Exch.  298,  23  Law  J.  Exch.  273 24 

Conley  V.  Sims,  71  Ga.  161 141 

Conner  v.  Coffin,  22  N.  H.  538 49 


CASES    CITED.  267 

Page 

Connolly  v.  Hull,  3  McCord,  6 10 

Conrad  v.  Fisher,  37  Mo.  App.  352,  353 206,  208,  209 

Constantia,  The,  6  C.  Rob.  Adm.  321 216 

Conyers  v.  Ennis,  2  Mason,  236,  Fed.  Cas.  No.  3,149 221 

Cook  V.  Brandeis,  3  Mete.  (Ky.)  555 229 

V.  Corthell,  11  R.  I.  482 24 

V.  Deaton,  3  Car.  &  P.  114 10 

V.  Ferral,  13  Wend.  285 179 

V.  Oilman,  34  N.  H.  560 121 

V.  Perry,  43  Mich.  629,  5  N.  W.  1054 210 

Cooke  V.  Millard,  65  N.  Y.  352,  367,  370 41,  52,  59 

V.  Oxley,  3  Term  R.  653   27 

Cookson  V.  Swrie,  9  App.  Cas.  653,  664 127 

Cool  V.  Peters  Box  &  Lumber  Co.,  87  Ind,  531 46 

Coolidge  V.  Brigham,  1  Mete.  (Mass.)  547 121 

V.  Goddard,  77  Me.  578,  1  Atl.  831 113 

V.  Melvin,  42  N.  H.  516 129 

Coombs  V.  Bristol  &  E.  Ry.  Co.,  3  Hurl.  &  N.  510,  27  Law  J.  Exch.  401 . .  55,  58 

V.  Gorden,  59  Me.  Ill 19 

Coon  V.  Spaulding,  47  Mieh.  162,  10  N.  W.  183 185,  186 

Cooper,  Ex  parte,  11  Ch.  Div.  68 220,  222 

V.  Bill,  3  Hurl.  &  C.  722 64 

V.  Elston,  7  Term  R.  14 37,  38,  53 

V.  Shepherd,  3  C.  B.  266,  15  Law  J.  C.  P.  237 31 

V.  Shuttle  worth,  25  Law  J.  Exch.  114 33 

V.  Willomatt,  1  C.  B.  672,  14  Law  J.  C.  P.  219 17,  20 

Copas  V.  Anglo-American  Provision  Co.,  73  MIeh.  541,  41  N.  W.  690 . .   173 

Cope  V.  Rowlands,  2  Mees.  &  W.  149 140,  141 

Coplay  Iron  Co.  v.  Pope,  108  N.  Y.  232,  15  N.  E.  335 248 

Cordes  V.  Miller,  89  Mich.  581 ^ 161 

CornlDg  V.  Abbott,  54  N.  H.  469 141 

Corn  well  v.  Haight,  8  Barb.  327 206 

Corporation  of  Liverpool  v.  Wright,  28  Law  J.  Ch.  868,  1  Johns.  Eng.  Ch. 

359 138 

Cort  V.  Ambergate  N.  &  B.  &  E.  J.  Ry.  Co.,  17  Q.  B.  127,  20  Law  J.  Q.  B. 

460 158,   159,   233 

Cortelyou  v.  Lansing,  2  Caines,  Cas.  (N,  Y.)  200 3 

Corwin  v.  Behman,  2  Ohio  St.  36 167 

Cory  V.  Thames  Iron  Works  &  Ship  Bldg.  Co.,  L.  R.  3  Q.  B.  181,  37  Law  J. 

Q.  B.  68 239,  240 

Cothran  v.  Ellis,  125  111.  496,  16  N.  E.  646 144 

Gotten  V.  McKenzIe,  57  Miss.  418 148 

V.  Willoughby,  83  N.  C.  75 25 

Cottrell  V.  Stevens,  10  Wis.  366 -.     66 


2G8  CASES    CITED. 

Page 

Cotzhansen  y.  Simon,  47  Wis.  103,  1  N.  W.  473 IK) 

Council  Bluffs  Iron  Works  v.  Cuppey,  41  Iowa,  104 ►,  ».  185 

Courtis  V.  Cane,  32  Vt.  232 ,^^.     17 

Courtrlght  v.  Leonard,  11  Iowa,  32 95 

Couston  V.  Chapman,  L,  R.  2  H.  L.  Sc.  250,  L.  R,  2  Sc.  App.  250,  254. .  .50,  175 

Covell  V.  Hitclicock,  23  Wend.  611 221 

Coventry  v.  Gladstone,  L.  R.  6  Eq.  44 222 

Cowley  V.  Smyth,  46  N.  J.  Law,  380 116 

Cox  V.  Burns,  1  Iowa,  64 221 

V.   Long,  69  N.  C.  7,  9 242,  244 

V.  Prentice,  3  Maule  &  S.  344 109 

Coxe  V.  Heisley,  19  Pa.  St.  243 169 

Craig  V.  Harper,  3  Cnsh.  158 28 

Crane  v.  London  Dock  Co.,  5  Best  &  S.  313,  33  Law  J.  Q.  B.  224,  229 16,  18 

Cranson  v.  Goss,  107  Mass.  439,  441 147 

Crapo  V.  Kelly,  16  Wall.  610,  640 181 

Crawcour,  Ex  parte,  9  Ch.  Div.  419 89 

Crawford  v,  ForrlstaU,  58  N.  H.  114 130 

V.  Scovell,  94  Pa.  St.  48 13 

Crawshay  v.  Eades,  1  Barn.  &  C.  181 220 

Cream  City  Glass  Co.  v.  Friedlander,  84  Wis.  53,  54  N,  W.  28 198 

Greighton  v.  Comstock,  27  Ohio  St.  548 191 

Crenshaw  v.  Slye,  52  Md.  140 163 

Cressey  v.  Sabre,  17  Hun,  120 24 

Crist  V.  Armour,  34  Barb.  378 159 

Crocker  v.  GuUifer.  44  Me.  491,  494 93 

Crockett  v.  Scribner,  64  Me.  447 42 

Crofoot  V.  Bennett,  2  N.  T.  258 96 

Crommelin  v.  New  York  &  H.  R.  Co.,  43  N,  Y.  90 206 

Croninger  v.  Crocker,  62  N.  Y.  151,  158 187-189,  197 

Crookshank  v.  Burrell,  18  Johns.  58 37,  41 

V.  Rose,  5  Car.  &  P.  19 148 

Crosby  v.  Delaware  &  H.  Canal  Co.,  119  N.  Y.  334.  23  N.  E.  736 3 

V.  Wadsworth,  6  East,  602 46 

Cross  V.  Hayes,  45  N.  J.  Law,  565 120 

V.  O'Donnell,  44  N.  Y.  661 54,  61 

Crowninshield  v,  Kittridge,  7  Mete.  (Mass.)  520 126 

Croyle  v.  Moses,  90  Pa.  St.  250 : 113 

Crummey  v.  Kaudenbush.  55  Minn.  426,  56  N.  W.  1113 207,  208,  216 

Cuddee  v.  Rutter,  1  White  &  T.  Lead.  Gas.  Eq.  (Am.  Ed.  1876)  10(>3 240 

Cufif  V.  Penn,  1  Maule  &  S.  21 73 

Culin  V.  Woodbury  Glass  Works,  108  Pa.  St.  220 237 

Cullum  V.  Wagstafif,  48  Pa.  St.  300 180 

-Cuming  v.  Brown,  9  Eas^  506 224 


CASES   CITED.  269' 

Page 

Cummin?  v.  Roebuck,  Holt,  172 79^ 

Cummings  v.  Arnold,  3  Mete.  (Mass.)  486 '. 73 

Cundell  v.  Dawson,  4  0.  B.  376 140 

Cundy  v.  Lindsay,  3  App.  Cas.  459 17,  22,  123 

CunliCfe  v.  Harrison,  6  Exch.  903,  906 102,  18S,  1S9 

Cunningham  v.  Ashbrook,  20  Mo.  553 88 

V.  Brown,  44  Wis.  72 83 

V.  Hall,  1  Sprague,  404,  Fed.  Cas.  No.  3,482 172 

V.  Williams,  43  Mo.  App.  629 75 

Currie  v.  Anderson,  2  El.  &  El.  592,  29  Law  J.  Q.  B.  87 55,  50,  58 

Curtis  V.  Hannay,  3  Esp.  82 244 

Cusack  V.  Robinson,  30  Law  J.  Q.  B.  261,  264,  1  Best  &  S.  299 

52,  54,  58,  61,  62,  210 
Cushing  V.  Breed,  14  Allen,  376 86 


D 

Dalley  y.  Green,  15  Pa.  St.  118,  126 157,  242,  245 

Dakota  Stock  &  Grazing  Co.  v.  Price,  22  Neb.  96,  34  N.  W.  97 183 

Dame  v.  Baldwin,  8  Mass.  518 18 

V.  Flint,  64  Vt.  533,  24  Atl.  1051 149 

Damon  v.  Bryant,  2  Pick.  411 128 

V.  Osborn,  1  Pick.  476 53 

Dana  v.  Fiedler,  12  N.  Y.  40 232,  236 

V.  Hancock,  30  Vt.  616 73 

Dane  v.  Kirkwall,  8  Car.  &  P.  679 14 

Danforth  v.  Streeter,  28  Vt.  490 l-;9 

V.  Walker,  37  Vt.  239 232 

Daniels  v.  Bailey,  43  Wis.  566 46 

V.  Newton,  114  Mass.  530,  533 159 

D'AquIla  v.  Lambert,  2  Eden,  77,  1  Amb.  399 215 

Darvill  v.  Terry,  6  Hurl.  &  N.  807,  30  Law  J.  Exch.  355 125 

Dater  v.  Earl,  3  Gray,  482 135 

Davies  v.  McLean,  21  Wkly.  Rep.  264,  28  Law  T.  (N.  S.)  113 184 

Davis  V.  Betz,  66  Ala.  206 120 

V.  Bronson,  6  Iowa,  410 136,  149 

V.  Caldwell,  12  Cush.  512,  513 9-11 

T.  Eastman,  1  Allen,  422 60 

V.  McFarlane,  37  Gal.  634 48 

T.  Robertson,  1  Mill,  Const.  71 43 

V.  Rowell,  2  Pick.  64 43 

V.  Russell,  52  Cal.  611 211 

V.  Shields,  26  Wend.  341 71,  76 

V.  Smith,  7  Minn.  414  (GIL  328) 166 


270  CASES   CITEDi 

Page 

Davison  t.  Von  Llngren,  113  U.  S.  40,  5  Sup.  Ct.  346 151 

Dawes  v.  Peebles,  G  Fed.  856 172 

Dawson  v.  CoUis,  10  C.  B.  523,  533 243 

V.  Graham,  48  Iowa,  378 114 

Day  V.  Bassett,  102  Mass.  445 90 

V.  Cooley,  118  Mass.  524 128 

V.  McAllister,  15  Gray,  433 143 

V.  Pool,  52  N.  Y.  416 244,  248 

V.  Raguet,  14  Minn.  273  (Gil.  203) 174 

Dayton  v.  Fargo,  45  Mich.  153,  7  N.  W.  758 139 

V.  Hooglund,  39  Ohio  St.  671 245,  247 

Dearborn  v.  Turner,  16  Me.  17 93 

Deason  v.  Boyd,  1  Dana,  45 8 

Decell  V.  Lewenthal.  57  Miss.  331 10 

Deering  v.  Chapman,  22  Me.  488 »  148 

V.  Cobb,  74  Me.  334 24 

Delamater  v.  Chappell,  48  Md.  244,  245,  253 92,  199 

Dellone  v.  Hull,  47  Md.  112 120,  234 

Deming  v.  Foster,  42  N.  H.  165,  175 172,  176 

Dempsey  v.  Gardner,  127  Mass.  381 130,  132 

Denny  v.  Eddy,  22  Pick.  535 90 

Derbyshire's  Estate,  81  Pa.  St.  18 104 

Devaux  V.  ConoUy,  8  C.  B.  640 Ill 

Devine  v.  Edwards,  101  111.  138 87,  195 

Devlin  v.  Mayor,  etc.,  63  N.  Y.  8 240 

Dewes  Brewery  Co.  v.  Merritt,  82  Mich.  198,  46  N.  W.  379 90 

Dewey  v.  Erie  Borough,  14  Pa.  St.  211 92 

De  Witt  V.  Berry,  134  U.  S.  306,  10  Sup.  Ct.  536 177 

Dexter  v.  Norton,  47  N.  Y.  62 161 

Dickinson  v.  Dobbs,  2  Ch.  Div.  463 28 

V.  Gay,  7  Allen,  29 169,  174 

Dickson  v.  Zizinia,  10  C.  B.  602,  20  Law  J.  C.  P.  73 176 

Diem  v.  Koblitz,  49  Ohio  St.  41,  29  N.  E.  1124 216,  226 

Dietz  V.  Sutcliffe,  80  Ky.  650 120 

Dilk  v.  Keighley,  2  Esp.  480. 10 

Dill  V.  O'Ferrall,  45  Ind.  268 122 

Dingle  V.  Hare,  7  C.  B.  (N.  S.)  145,  29  Law  .T.  C.  P.  144 248 

Dingley  v.  Oler,  117  U.  S.  490,  6  Sup.  Ct.  850,  11  Fed.  372 158,  159 

Diversy  v.  Kellogg,  44  111.  114 100 

Divine  v.  McCormick,  50  Barb.  116 173 

Dixon  v.  Baldwen,  5  East,  175 222 

V.  Fletcher,  3  Mees.  &  W.  146 1S8 

V.  Yates,  5  Barn.  &  Adol.  313,  341 83,  210,  212,  213,  216 

D.  M.  Osborne  &  Co.  v.  Francis,  38  W.  Va.  312,  18  S.  E.  591 154 


CASES  CITED.  271 

Page 

Doaae  r.  Dunham,  65  111.  512.  79  111.  131 197,  200,  242,  245 

Dodsley  v.  Varloy,  12  Adol.  &  B.  632 207 

Doherty  v.  Hill,  144  Mass.  405,  11  N.  E.  581 72 

Dole  V.  Olmstead,  36  111.  150,  41  lU.  344 90 

v^.  Stlmpson.  21  Pick.  384 5G 

Donald  v.  Sucklin/?,  L.  R.  1  Q.  B.  585 3 

Donaldson  v.  Farwell,  93  U.  S.  631 114.  123 

Dood  V.  Farlow,  11  Allen,  426 169 

Doremus  v.  Howard,  23  N.  J.  Law,  390 234 

Dorr  V.  Fisher,  1  Gush.  271,  273 151 

Dorsey  v.  Pike,  50  Hun,  534,  3  N.  Y.  Supp.  730 04 

Doughty  V.  Manhattan  Brass  Co.,  101  N.  Y.  644,  4  N.  E.  747 76 

Douglas  V.  Shumway,  13  Gray,  499 ....  207 

Douglass  Axe  Manuf  g  Co.  v.  Gardner,  10  Cush.  88 244 

Dounce  v.  Dow,  64  N.  Y.  411 172 

Dow  V.  Sanborn,  3  Allen,  181 114 

V.  Worthen,  37  Vt.  108 66 

Dowling  V.  Lawrence,  58  Wis.  282,  16  N.  W.  552 112 

V.  McKenney,  124  Mass.  480 4,  40 

Downer  v.  Thompson,  2  Hill,  137,  6  Hill,  208 102,  189 

Downs  V.  Marsh,  29  Conn.  409 50 

V.  Ross,  23  Wend.   270 41 

Dows  y.  Kidder,  84  N.  Y.  121 85 

V.  National  Exchange  Bank,  91  U.  S.  618 106,  107 

Drake,  Ex  parte,  5  Ch.  Div.  866 31 

V.  Wells,  11  Allen,  141 46 

Drew  V.  Nunn,  4  Q.  B.  Div.  661 13 

Drummond  v.  Van  Ingen,  12  App.  Cas.  284,  290 173,  174,  177 

Drury  v.  Defontaine,  1  Taimt.  131 142 

V,  Young,  58  Md.  546 08,  75,  70 

Dube  V.  Beaudry,  150  Mass.  448,  23  N.  E.  222 8 

Dudley  v.  Dauforth,  61  N.  Y.  626 126 

Duke  V.  Shackleford,  56  Miss.  552 91 

Dulaney  v.  Rogers,  64  Mo.  201 116 

Duncuft  V.  Albrecht,  12  Sim.  189 44 

Dunkirk  Colliery  Co.  v.  Lever,  9  Ch.  Div,  20,  25 232 

Dunlap  V.  Berry,  4  Scam.  327 95 

Dunlop  V.  Grote,  2  Car.  &  K.  153 232 

V.  Lambert,  6  Clark  &  F.  600 100,  195 

Dunne  v.  Fergusom,  Hayes,  540 .' 48 

Durant  v.  Rhener,  26  Minn.  362,  4  N.  W.  610 142 

Durfee  v.  Jones,  11  R.  I.  588 32 

Durgin  v.  Dyer,  68  Me.  143 140 

Durgy  Cement  &  U.  Co.  v.  O'Brien,  123  Mass.  12,  13 216,  217 


272  OABES    CITED. 

Pag» 
Durrell  v.  Evans,  1  Hurl.  A  O.  174,  31  Law  J.  Exch.  337,  30  Law  J.  Exch. 

254,  6  Hurl.  &  N.  660 76,  77 

Dustan  v.  McAndrew,  44  N.  Y.  73 227,  229 

Dwight  V.  Eckert,  117  Pa.  St.  490,  12  Atl.  32 185 

Dwlnel  V.  Howard,  30  Me.  258 194 

Dyer  v.  Homer,  22  Pick.  253,  258 125,  128 

Dykera  v.  Townsend,  24  N.  Y.  57 «  «  ^     70 


E 

Eagan  Co.  v.  Johnson,  82  Ala.  233,  2  South.  302 247 

Earle  v.  Reed,  10  Mete.  (Mass.)  387 ^.  ^     11 

Easter  v.  Allen,  8  Allen,  7 „  ^  122 

Easton  V.  Montgomery,  90  Cal.  307,  27  Pac.  280 ^  «     75 

V.  Worthington,  5  Serg.  &  R.  130 18 

Eaton  V.  Cook,  32  Vt.  58 202 

V.  Eaton,  37  N.  J.  Law,  108 13 

V.  Keegan,  114  Mass.  433 141 

Echols  V.  New  Orleans,  J.  &  G.  N.  R.  Co.,  52  Miss.  610 «  ..  185 

Eckenrode  v.  Chemical  Co.,  55  Md.  51 ^  159 

Edan  V.  Dudfield,  1  Q.  B.  302,  306 56,  64 

Eddy  V.  Capron,  4  R.  I.  394 137 

V.  Clement,  38  Vt.  486 160 

Eden  v,  Parkison,  2  Doug.  735 164 

Edgerton  v.  Hodge,  41  Vt.  676 65 

V.  Michels,  66  Wis.  124,  26  N.  W.  748,  and  28  N.  W.  408 16G 

Edmunds  v.  Merchants'  Despatch  Transp.  Co.,  135  Mass.  283 123 

Edwards  v.  Brewer,  2  Mees.  &  W.  375 ^  . . . .  21G 

V.  Cottrell,  43  Iowa,  194 5 

V.  Davenport,  20  Fed.  756 13 

V.  Elliott,  36  N.  J.  Law,  449 104 

V.  Grand  Trunk  Ry.,  48  Me.  379,  54  Me.  105 37,  42,  56 

V.  Harben,  2  Term  R.  587 127 

V.  Marcy,  2  Allen,  486,  490 163 

Egerton  v.  Mathews,  6  East,  307 70 

Eggleston  v.  Wagner,  46  Mich.  610,  10  N.  W.  37 27 

E.  H.  Pray,  The,  27  Fed.  474 226 

Eichelberger  v.  McCauley,  5  Har.  &  J.  213 42 

Eiehholz  v.  Bannister,  17  C.  B.  (N.  S.)  708,  34  Law  J.  C.  P.  105 165-167 

Elbinger  Actien-Gesellschafft  fur  Fabrication  von  Eisenbahn  Materiel  y. 

Armstrong,  L.  R.  9  Q.  B.  473 240 

Eldridge  v.  Benson,  7  Cush.  483 8 

Elgee  Cotton  Cases,  22  Wall.  180,  187,  188,  193 » 82,  86,  88 


CASES   CITED.  273 

Pag* 

Ellen  T.Topp,  6  Exch.  424 246 

Ellershaw  v.  Magnlac,  6  Exch.  570 ..^...^ 106 

Elliot  V.  Ince,  7  De  Qei,  M.  &  G.  475,  487.. .  «  .  «.  ^.  ^ 13 

Elliott  V.  Edwards,  35  N.  J.  Law,  265 104 

V.  Thomas,  3  Mees.  &  W.  170 53 

Ellis  V.  Hammond,  57  Ga.  179 146 

V.  Hunt,  8  Term  R.  4&4,  467 181,  221 

V.  Roche,  73  111.  280 100 

V.  Thompson.  3  Mees.  &  W.  445 185 

Ellison  V.  Brigham,  38  Vt.  64 ^  ,- 42 

Elmore  v.  Kingscote,  5  Barn.  &  0.  583 71 

V.  Stone,  1  Taunt.  458 62 

Elphick  V.  Barnes,  5  C.  P.  Dlv.  321,  826 »2 

Ely  V.  Ormsby,  12  Barb.  570 63 

Emanuel  v.  Dane,  3  Camp.  299 4 

Emerson  v.  Brigham,  10  Mass.  197 174 

V.  European  &  N.  A.  Ry.  Co.,  67  Me.  887 24 

Emery  v.  Irving  Nat.  Bank,  25  Ohio  St  860 107 

Emma  Silver  Mln.  Co.  v.  Emma  Silver  Min.  Co.  of  New  York,  7  Fed.  401, 

402    120 

Emmerson  v.  Heelis,  2  Taunt.  38 50,  78 

Emmerton  v.  Mathews,  7  Hurl.  &  N.  586,  31  Law  J.  Exch.  139 173 

Emmett  v.  Thorn,  1  Maule  &  S.  425 19 

Bngle  V.  Chipman,  51  Mich.  524,  16  N.  W.  886 137 

English  V.  Spokane  Commission  Co.,  48  Fed.  196,  197,  6  C.  C.  A.  416,  57 

Fed.  451 178,  244,  247,  249 

Epperson  v.  Nugent,  57  Miss,  45 9 

Equitable  Gaslight  Co.  v.  Baltimore  Coal  Tar  &  Manuf  g  Co.,  63  Md.  285  241 

Erwin  v.  Harris,  87  Ga.  333,  13  S.  E.  513 106 

Eskrldge  v.  Glover,  5  Stew.  &  P.  264 28 

Esson  V.  Tarbell,  9  Cush.  407 242 

Eureka  Co.  v.  Edwards,  71  Ala.  248 7 

Evans  v.  Collins,  5  Q.  B.  804 116 

V.  Davies  (1893)  2  Ch.  Div.  216 44 

T.  Hoare  (1892)  1  Q.  B.  593 76 

v.  Montgomery,  50  Iowa,  325,  337 120,  124 

V.  Roberts,  5  Barn,  &  C.  836 48 

Everett  v.  Hall,  67  Me.  497 91 

Everingham  v.  Meighan,  55  Wis.  354,  13  N.  W.  269 145 

E wing  V.  French,  1  Blackf .  354 S 

Exhaust  Ventilator  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  69  Wis.  454,  34 
N.  W.  509 200 

SALES— 18 


274  CULIES  orrsD. 

P 

Pac* 

Falrbank  Canning  Co.  r.  Metzger,  118  N.  Y.  260,  267,  269,  23  N.  B.  372.. 

174,  243 

Fairbanks  v.  Eureka  Co.,  67  Ala.  109 90 

Fairfield  Bridge  Co.  v.  Nye,  60  Me.  372 130 

Falcke  V.  Gray,  4  Drew,  658,  29  Law  J.  Ch.  28 241 

Falk,  Ex  parte,  14  Ch.  Div.  446,  455,  7  App.  Cas.  573 225,  226 

Falls  V.  Gaitlier,  9  Port.  (Ala.)  605 28 

Farebrother  v.  Simmons,  5  Barn.  &  Aid.  333 77 

Farina  v.  Home,  16  Mees.  &  W.  119 56,  63,  211 

Farlow  v.  Ellis,  15  Gray,  229 89 

Farmeloe  v.  Bain,  1  C.  P.  Div.  445 « 212 

Farmer  v.  Gray,  16  Neb.  401,  20  N.  W.  276 53 

V.  Robinson,  cited  in  note  to  Heyman  v.  Neale,  2  Camp.  337 77 

Farmers'  &  Mechanics'  Nat.  Bank  v.  Logan,  74  N.  Y.  5G8,  578 106,  107 

Farrant  v.  Thompson,  5  Barn.  &  Aid.  826 19 

Farrar  v.  Smith,  64  Me.  74 ^ 132 

Farrer  v.  Nightingal,  2  Esp.  639 23 

Farrls  v.  Ware,  60  Me.  482 122 

Farwell  v.  Hanchett,  120  111.  573,  11  N.  E.  875 115 

V.  Lowther,  18  111.  252 71 

V.  Myers,  59  Mich.  179,  26  N.  W.  328 121 

Faulkner  v.  Hebard,  26  Vt.  452 28 

Fay  V.  Burditt,  81  Ind.  433....^.. 13 

Feise  v.  Wray,  3  East,  93 215,  216 

Felthouse  v.  Bindley,  11  C.  B.  (N.  S.)  869,  31  Law  J.  C.  P.  204 27 

Fenelon  v.  Hogoboom,  31  Wis.  172,  176 84,  85 

Fennell  v.  Ridler,  5  Barn.  &  C.  406 142 

Fenton  v.  Braden,  2  Cranch,  C.  C.  550,  Fed.  Cas.  No.  4,730 100 

Ferguson  v.  Carrington,  9  Bam.  &  C.  59 114,  120 

V.  Hosier,  58  Ind.  438 244,  248 

V.  Louisville  City  Nat.  Bank,  14  Bush,  555 95 

V.   Spear,  65  Me.  277 126 

Fessenden  v.  Mussey,  11  Cush.  127 75 

Fessler  v.  Love,  48  Pa.  St.  407 236,  239 

Field  V.  Chlpley,  79  Ky.  260 138 

V.  Lelean,  6  Hurl.  &  N.  617,  30  Law  J.  Exch.  168 207 

V.  Runk,  22  N.  J.  Law,  525,  530 52 

Fielder  v.  Starkln,  1  H.  Bl.  17 244 

Fifth  Nat.  Bank  of  Chicago  v.  Bayley,  115  Mass.  228 107 

Filkins  v.  Whyland,  24  N.  Y.  338 162 

Filley  v.  Pope,  115  U.  S.  213,  6  Sup.  Ct.  19 157.  196 

Filson  V.  Himes,  5  Pa.  St  452 137,  148 


GASES   CITED.  275 

Page 

Finch  V.  Barclay,  87  Ga.  393,  13  S,  E.  566 141 

V.  Mansfield,  97  Mass.  89,  92 «  . .  .^ « .  .100,  136 

Fine  v.  Hornsby,  2  Mo.  App.  61 ^ 44 

Finley  v.  Quirk,  9  Minn.  194  (Gil.  179) 146 

Finn  v.  Clarli,  10  Allen,  479,  12  Allen,  522 197 

Finney  v.  Apgar,  31  N.  J.  Law,  266,  271 37,  42 

First  Nat.  Bank  v.  Kilbourne,  127  111.  573,  20  N.  E.  681 29 

First  Nat.  Bank  of  Cairo  v.  Crocker,  111  Mass.  163 107 

Fish  V.  Cleland,  33  111.  237 115 

V.  Kempton,  7  C.  B.  687 203 

Fishback  v.  Van  Dusen,  33  Minn.  Ill,  22  N.  W.  244 3,  85,  89 

Fisher  v.  Kuhn,  54  Miss.  480 73 

V.  Lord,  63  N.  H.  514,  3  Atl.  927 149 

V.   Melleu,  103   Mass.   503 116 

V.  Seltzer,  23  Pa.  St.  308 28 

Fitch  V.  Archibald,  29  N.  J.  Law,  160 173 

Flagg  V.  Gilpin,  17  R.  I.  10,  19  Atl.  1084 144 

Flanders  v.  Putney,  58  N.  H.  358 31 

Fiarty  v.  Odium,  3  Term  R.  681 138 

Fleck  V.  Warner,  25  Kan.  492 91 

Fletcher  v.  Livingston,  153  Mass.  388,  390,  26  N.  E.  1001 46 

Fllnn  V.  St  John,  51  Vt.  334,  345 143 

Flint  V.  Lyon,  4  Cal.  17 156 

T.  Valpey,  130  Mass.  385 12 

Floyd  V.  Brown,  1  llawle,  121 82 

Foard  V.  McComb,  12  Bush,  723 116 

Fontaine  v.  Bush,  40  Minn.  141,  41  N.  W.  465 57 

Fonville  V.  Casey,  1  Mm-ph.  389 25 

Forlv'8  Y.  Marsh,  15  Conn.  384 90 

Forcheimer  v.  Stewart,  65  Iowa,  593,  22  N.  W.  886 106 

Ford  y.  Phillips,  1  Pick.  202 8 

Foreman  v.  AM,  55  Pa.  St.  325 14;^,  14G 

Fore.s  V.  Johnes,  4  Esp.  97 134 

Forster  v.  Taylor,  5  Bam.  &  Adol.  887 141 

Forsyth  v.  Jervis,  1  Starkie,  437 4 

Forty  Sacks  of  Wool,  14  Fed.  643 307 

Foss-Sctneider  Brewing  Co.  v.  Bullock,  8  C.  G.  A.  14,  59  Fed.  83 200 

Foster  v.  Adams,  60  Vt  392,  15  Atl.  169 234 

Y.  Lumbermen's  Min.  Co.,  68  Mich.  188,  36  N.  W.  171 34 

V.  Mabe,  4  Ala.  402 47 

V.  Magill,  119  111.  75,  8  N.  B.  771 88 

▼.  Pettibone,  7  N.  Y.  433 3 

T.  Ropes,  111  Mass.  10 86 

V.  Thurston,  11  Gush.  322 146 


276  CASES   CITED. 

Page 

Foster's  Case,  1  Leon.  42 ►^  ..  . . .     25 

Foulk  V.  Eckert,  61  111.  318 120 

Fowler  v.  Callan,  102  N.  Y.  395,  7  N.  E.  169 139 

V.  McTaggart,  cited  in  Hodgson  v.  Loy,  7  Term  R.  442 219 

Fox  V.  Harding,  7  Gush.  516 ^240 

V.  Mackreth,  2  Brown,  C.  C.  400 113 

V.  Webster,  46  Mo.  181 115 

Foy  V.  Cochran  88  Ala.  353,  6  South.  G85 139 

Fragano  v.  Long,  4  Barn.  &  C.  219 100 

France  v.  Gaudet,  L.  11.  6  Q.  B.  199 241 

Frank  v.  Hoey,  128  Mass.  263 100 

V.  Miller,  38  Md.  450 72,  74 

Franklin  v.  Long,  7  Gill  &  J.  407 23,  244 

V.  Neate,  13  Mees.  «&  W.  481 3 

Frazier  v.  Simmons,  139  Mass.  531,  535,  2  N.  E.  112 234 

Freeland  v.  Rltz,  154  Mass.  257,  28  N.  E.  226 74 

Freelove  v.  Freelove,  128  Mass.  190 242 

Freeman  v.  Cooke,  2  Exch.  654 22 

Freeth  v.  Buit,  L.  R.  9  C.  P.  208 193 

Frenzel  v.  Miller,  37  Ind.  1 116 

Freyman  v.  Knecht,  78  Pa.   St.  141 243,  248 

Frohreich  v.  Gammon.  28  Minn.  476,  11  N.  W.  88 240,  250 

Frost  V.  Blanehard,  97  Mass.  155 162 

V.  Hill,  3  Wend.  386 78 

V.  Knight,  L.  R.  7  Exch.  Ill 159 

V.  Woodruff,   54   111.    155 88 

Fuentes  v.  Montis,  L.  R.  3  C.  P.  268,  87  Law  J.  C.  P.  137,  L.  R.  4  C.  P.  93. .     20 

Fuller  V.  Duren,  36  Ala.  73 ; 4 

Furlong  v.  PoUeys,  80  Me.  491 237,  239 


G 

Gabarron  ▼.  Kreeft,  L.  R.  10  Exch.  274 95,  106 

Gadsden  v.  Lance,  1  McMul.  Eq.  87 44 

Gaff  V.  Homeyer,  59  Mo.  345 56,  200 

Gage  V.  Chesebro,  49  Wis.  486,  5  N.  W.  881 126 

Gale  V.  Burnell,  7  Q.  B.  850 24 

Galvin  v.  Bacon,  11  Me.  28 17 

V.  Maskenzie,  21  Or.  184,  27  Pac.  1039 57 

Ganson  v.  Madigan,  9  Wis.  146,  13  Wis.  67,  68,  15  Wis.  144,  151 

189,  230,  232,  234 

Garbutt  v.  Watson,  5  Barn.  &  Aid.  613 37,  38,  40 

Gardet  v.  Belknap,  1  Cal.  399 61 


CASES   CITED.  277 

Page 

Gardiner  v.  Gray,  4  Camp.  144 174 

Gardner  v.  Grout,  2  C.  B.  (N.  S.)  340 53 

V.  Joy,  9  Mete.  (Mass.)  177 40 

V.  Lane,  9  Allen  492,  12  Allen,  39,  98  Mass.  517 32,  102 

V.  McEwen,   19  N.   Y.   123 24 

Garfield  v.  Paris,  96  U.  S.  557,  562,  563,  566,  567 53,  56.  59 

Garforth  v.  Fearon,  1  H.  Bl.  328 137 

Garretson  v.  Selby,  37  Iowa,  529 100,  197 

Gary  v.  Jacobson,  55  Miss.  204 128 

Gates  V.  Bliss,  43  Vt.  299 121 

Gault  V.  Brown,  48  N.  H.  183,  188 ^ 50,  52 

Gaylord  v.   Soragen,  32  Vt.  110 136,  149 

Gaylord  Manuf  g  Co.  v.  Allen,  53  N.  Y.  515 200,  248 

Gentilll  v.  Starace,  133  N.  Y.  140,  30  N.  B.  660 248 

Gerhard  v.  Bates,  2  El.  &  Bl.  476,  22  Law  J.  Q.  B.  364 117 

Gerst  V.  Jones,  32  Grat.  518 172 

Gibbes,  Ex  parte,  1  Ch.  Div.  101 222 

Gibbs  V.  Merrill,  3  Taunt.  307 7 

Gibson  v.  Carruthers,  8  Mees.  &  W.  321,  334,  337 214,  217 

V.  Cranage,  39  Mich.   49 154 

V.  Holland,  L.  R.  1  C.  P.  1,  35  Law  J.  0.  P.  5 68,  69 

V.  Pelkie,  37  Mich.  380 23 

V.  Soper,  6  Gray,  279 12,  13 

V.  Stevens,  8  How.  3M 182 

Giles  V.  Edwards,  7  Term  R.  181 109,  110 

Gill  V.  Benjamin,  &4  Wis.  362,  25  N.  W.  445 99 

V.  BickneU,  2  Cush.   355,  358 78 

V.  Hewett,  7  Bush,   10 78 

Gillett  V.  Hill,  2  Cromp.  &  M.  530 95 

GUman  v.  Andrews,  66  Iowa,  116,  23  N.  W.  291 230 

V.  Hill,  36  N.  H.  311,  318 42,  50 

Gilmore  v.  Newton,  9  Allen,  171 17 

Gilmour  v.  Supple,  11  Moore,  P.  C.  566 83 

Girard  v.  Taggart,  5  Serg.  &  R.  19 228,  232 

Giroux  V.  Stedman,  145  Mass.  438,  14  N.  B.  538 174 

Gittings  V.   Nelson,   86  Bl.   591 24,   25 

Glover  v.  Ott,  1  McCord,  572 11 

Glyn  V.  East  &  W.  I.  Dock  Co.,  7  App,  Gas.  591,  affirming  6  Q.  B.  Div.  475, 

reversing  5  Q.  B.  Div.  129 224,  226 

Goddard  v.  Binney,  115  Mass.  450,  455,  456 40,  84,  103,  183 

Godts  v.  Rose,  17  C.  B.  229 98 

Godwin  V.  Francis,  L.  K.  5  C.  P.  295 78 

Golden  v.  Ogden,  15  Pa,  St.  528 95 

Golding,  Bx  parte,  13  Ch.  Div.  628 225 


278  CASE!   CITED. 

Pago 

Gompertz  v.  Bartlett,  2  El.  &  Bl.  849.  23  Law  J.  Q.  B.  65 110 

V.  Denton,  1  Cromp.  &  M,  207 243 

Gooch  V.  Holmes,  41  Me.  523 44 

Goodall  V.  Skelton,  2  H.  Bl.  316 210 

Goodell  V.  Fairbrotlier,  12  R.  I.  233 90 

Goodman  v.  Griffiths,  1  Hurl.  &  N.  574,  26  Law  J.  Exch.  145 71 

Goodrich  v.  Van  Nortwick,  43  111.  445 154 

Goodwin  v.  Boston  &  L.  R.  Co.,  Ill  Mass.  487,  489 84 

V.  Massachusetts  Loan  &  Trust  Co.,  152  Mass.  189,  199,  25  N.  E.  100.  .21, 123 

Goom  V.  Aflalo,  6  Bam.  &  C.  117 80 

Gordon  v.  Butler,  105  U.  S.  553 113 

V.  Norris,  49  N.  H.  376 103,  232 

V.  Ritenour,  87  Mo.  54 22,  128 

Gore  V.  Gibson,  13  Mees.  &  W.  623,  Ewell  Lead.  Cas.  734 13,  14 

Gorham  v.  Fisher,  30  Vt.  428 59 

Gosbell  V.  Archer,  2  Adol.  &  E.  500 78 

Goss  V.  Lord  Nugent,  5  Barn.  &  Adol.  65 73 

Gossler  v.  Schepeler,  5  Daly,  476 215,  218 

Gould  V.  Bourgeois,  51  N.  J.  Law,  361,  373,  18  Atl.  64 1G6 

V.  Murch,    70    Me.    288 161 

V.  Stein,  149  Mass.  570,  22  N.  B.  47 174 

Gowen  v.  KIous,  101  Mass.  449 70 

Grace  v.  Hale,  2  Humph.  27 11 

Gradle  v.  Warner,  140  111.  123,  29  N.  E.  1118 71 

Graff  V.  Fitch,  58  111.  373 48 

V.  Foster,  67  Mo.  512 174 

Graffenstein  v.  Epstein,  23  Kan.  443 114 

Grafton  v.  Armltage,  2  C.  B.  336,  15  Law  J.  O.  P.  20 39 

V.  Cummings,  99  U.  S.  100,  111,  112 69,  74 

Graham  v.  Fretwell,  3  Man.  &  G.  368 77 

V.  Musson,  5  Bing.  N.  0.  603 77 

Grand  Tower  Co.  v.  Phillips,  23  WaU.  471 237 

Grant  v,  Fletcher,  5  Barn.  &  C.  436 80 

V.  Johnson,  5  N.  Y.  247 152 

V.  McGrath,  56  Conn.  333,  15  Atl.  370 143 

V.  Merchants'  &  Manufacturers'  Bank,  35  Mich.  515 185 

Grantham  v.  Hawley,  Hob.   132 23 

Graves  v.  Johnson,  156  Mass.  211,  30  N.  E.  818 136,  137,  149 

V.  Legg,  9  Exch.  709,  23  Law  J.  Exch.  228 152 

T.  Weld,  5  Bam.  &  Adol.  105 48 

Gray  v.  Agnew,  95  HI.  315 21 

T.  Davis.   10  N.  Y.  285 56 

T.  Hook,  4  N.  Y.  449 137 

V.  Walton,  107  N.  Y.  254,  14  N.  E.  191 184 


OJLSIS   CITES.  279 

Page 

Greaves  v.  Hepke,  2  Bam.  &  Aid.  131 87 

Grebert-Borgnis  v.  Nugent,  15  Q.  B.  DIv.  85 240 

Green  v.  Armstrong,  1  Denio,  550 46 

V.  Brooklns,  23  Mich.  48,  54 44 

V.  Collins,  3  Cliff.  494,  501,  Fed.  Cas.  No.  5,755 135,  136 

V.  Godfrey,  44   Me.  25 146 

V.  Green,  69  N.  Y.  553 7 

V.  Hall,  1  Houst.  506,  546....  »...^ 104 

V.  Lewis,  26  D,  O.  Q.  B.  618. 81 

V.  Merriam,  28  Vt  801 61,  62 

V.  North  Carolina  R.  Co.,  73  N.  C.  524 46 

V.  Rowland,  16  Gray,  58 129 

V.  Stuart,  7  Baxt.  418 110 

V.  Tanner,  8  Mete.  (Mass.)  411 22,  128 

Greene  v.  Bateman,  2  Woodb.  &  M.  359,  Fed.  Cas.  No.  5,762 30 

V.  Lewis,  85  Ala.  221,  4  South.  740 33 

Grcenman  v.  Cohee,  61  Ind.  201 139 

Greenwood  v.  Curtis,  6  Mass.  358 149 

V.  Law,  55  N.  J.  Law,  168,  26  Atl.  134 44 

Greer  v.  Church,  13  Bush,  430 29 

Gregg  V.  Wells,  10  Adol.  &  E.  90 22 

Gregory  r.  Morris,  96  U.  S.  619,  623 207,  210 

V.  Paul,  15  Mass.  31 15 

V.  Schoenell,  55  Ind.  101 ._ 115,  118 

V.  Wendell,  39  Mich.  337 144,  145 

Greve  v.  Dunham,  60  Iowa,  108,  14  N.  W.  130 217,  220 

Grey  v.  Cary,  9  Daly,  363 61 

Gribben  v.  Maxwell,  34  Kan.  8,  7  Pac.  584 13 

Grice  v.  Richardson,  3  App.  Cas.  319 209 

Grieb  v.  Cole,  60  Mich.  397,  27  N.  W.  579 163 

Griffin  v.  Colver,  16  N.  Y.  489 238 

Griffith  V.  Fowler,  18  Vt.  390.... 19 

V.  Wells,  3  Denio,   226 140,  142 

Griffiths  V.  Owen,  13  Mees.  &  W.  58 66 

V.  Perry,  1  El.  &  El.  680,  28  Law  J.  Q.   B.  204,  207 207-209,  227 

Grigsby  v.  Stapleton,  94  Mo.  423,  7  S.  W.  421 112 

Grimes  v.  Van  Vechten,  20  Mich,  410 57 

Grimoldby  v.  Wells,  L.  R.  10  O.  P.  391... «.. 200 

Grizewood  v.  Blane,  11  C.  B.  526 144 

Groff  V.  Belch,  62  Mo.  400 86 

Gross  V.  Jordan,  83  Me.  380,  22  Atl.  250 29 

V.  Kierski,  41  Cal.  Ill 166,  167 

Grotenkemper  v.  Achtermeyer,  11  Bush,  222 28 

Groton  v.  Waldoborough,  11  Me.  306 138 


280  GISES    CITED. 

Page 

Gront  r.  Htll,  4  Gvny.  361 221 

Groves  v.  Buck,  3  Maule  &  S.  178 37,  38 

Grymes  v.  Sanders,  93  U.  S.  55.  62 109,  120,  121,  124 

Guckenhelmer  y,  Angevine,  81  N.  Y.  394 «  122 

Guernsey  v.  Cook,  120  Mass.  501 138 

Guilford  v.  McKinley,  61  Ga.  230 91 

V.  Smith,  30  Vt.  49 222 

Gunby  v.  Sluter,  44  Md.  237 118 

Gunderson  v.  Richardson,  56  Iowa,  56,  8  N.  W.  683 146 

Gunn  V.  Bolckow,  10  Ch.  App.  491,  496 208,  212 

Gunter  v.  Leckey,  30  Ala.  596 4 

Gunther  v.  Atwell,  19  Md.  157 174 

Guthrie  v.  Morris,  22  Ark.  411 11 

V.  Murphy,  4  Watts,  80 10 

Gurney  v.  Atlantic  &  G.  W.  R.  Co.,  58  N,  T.  358 248 

V.  Womersley,  4  El.  &  Bl,  133,  24  Iaw  J.  Q.  B.  46 110 

Gwlnn  V.  Slmes,  61  Mo.  335 143 

Gwyn  V.  Richmond  &  D.  R.  Co.,  85  N.  C.  429....»^„. 215 


Haase  v.  Mitchell,  58  Ind.  218 „ 122 

V.  Nonnemacher,  21  Minn.  486,  490 157,  247 

Hadley  v.  Baxendale,  9  Exch.  341,  354,  23  Law  J.  Bxch.  179 238 

Haines  v.  Tucker,  50  N.  H.  307,  311 159 

Haldeman  v.  Duncan,  51  Pa.  St  66 ^ 95 

Hale  V,  Rawson,  27  Law  J.  C.  P.  189 26 

Hall  V.   Butterfield,   59  N.    H.  354 ^ 7,  8 

V.  Corcoran,  107  Mass.  251 147 

T.  Dlmond,  63  N.  H.  565,  3  Atl.  423 222,  223 

V.  Fullerton,    69    111.    448 124 

V.  Gavlt,   18  Ind.   390 „  ^ 138 

V.  Hall,  24  Conn.  358 25 

V.   Hinks,  21  Md.  406 123 

Hallas  V.  Robinson,  15  Q.  B.  Dlv.  288 26 

Hallen  v.  Runder,  1  Cromp.,  M.  &  R.  266 48 

Hallenbeck  v.  Cochran,  20  Hun,  418 63 

Hallett  V.  Novlon,  14  Johns.  273 „ 140 

V.  Oakes,  1  Cush.  296 14 

Halley  y.  Troester,  72  Mo.  78 «..^ 12 

Hallgarten  v.  Oldham,  135  Mass.  1,  9 130,  132,  182 

Halllday  y.  Holgate,  L.  R.  8  Bxch.  299 3 

Halsey  y.  Warden,  25  Kan.  128 „ 107 

Halterline  v.  Rice,  62  Barb.  593 87 


GASES   CITED.  281 

Page 

Hamburger  v.  Rodman,  9  Daly,  93,  96 209,  213 

Hamet  v.  Letcher,  37  Ohio  St.  356 123 

Hamilton  v.  Calhoun,  2  Watts,  139.... «...^ 183 

V.  Rogers,  8  Md.  301 ^^^^^^ 24 

V.  Russell,  1  Cranch,  309,  316 125 

Hammer  v.  Schoeaf elder,  47  Wis.  455,  2  N.  W.  1129 237,  239 

Hammond  v.  Anderson,  1  Bos.  «&  P.  (N.  R.)  69 87 

V.  Buckmaster,  22  Vt  375 121 

V,  Bussey,  20  Q.  B.  Div.  79 249 

V.  Pennock,  61  N.  Y.  145,  155 116,  121,  122 

Hanauer  v.  Doane,  12  Wall.  342 136 

Hands  v.  Burton,  9  East,  349. .....  ^ 4 

V.  Slaney,  8  Term  R.  578 9 

Handy  v.  Publishing  Co.,  41  Minn.  188,  42  N.  W.  872 149 

Hanington  v.  Du  Chatel,  1  Brown,  C.  C.  124 137 

Hanks  v.  Palling,  6  El.  &  Bl.  659,  669,  25  Law  J.  Q.  B.  375 26 

Hanna  v.  Mills,  21  Wend.  90 234 

V.  Rayburn,  84  111.  533 118 

Hansen  v.  Consumers'  Steam-Heating  Co.,  73  Iowa,  77,  34  N.  W.  495. ...  194 

Hanson  v.  Armitage,  5  Barn.  &  Aid.  557 57,  59 

T.  Busse,  45  111.  496 174 

V.  Edgerly,  29  N.  H.  343 112 

T.  Marsh,  40  Minn.  1,  40  N.  W.  841 71 

V.  Meyer,  6  East,  614 87 

Hapgood  V.  Rosenstock,  23  Fed.  86 241 

T.  Shaw,  105   Mass.  278 179,  184 

Harden  v.  McClure,  1  Chand.  (Wis.)  271,  2  Pin.  289 42 

Harding  Paper  Co.  v.  Allen,  65  Wis.  576,  27  N.  W.  329 222 

Hardman  v.  Booth,  1  Hurl.  &  C.  803,  32  Law  J.  Exch.  105 22,  123 

Hardy  v.  Potter,  10  Gray,  89 131 

Hargous  v.  Stone,  5  N.  Y.  73 168,  174 

Hargrove  v.  Adcock,  111  N.  C.  166,  16  S.  E.  16 77 

Harknesg  r.  Russell,  118  U.  S.  663,  7  Sup.  Ct.  51 90 

Harlow  v.  Putnam,  124  Mass.  553 110 

Harman  v.  Reeve,  18  C.  B.  587,  25  Law  J.  O.  P.  257-, 37,  49 

Harmony  v.  Bingham,  12  N.  Y.  99 160 

Harnor  v.  Groves,  15  C.  B.  667,  669,  24  Law  J.  C.  P.  53 Ill,  199 

Harper  v.  Craln.  36  Ohio  St.  838 144 

V.  Godsell,  L.  R.  5  Q.  B.  424... 3 

V.  Terry,  70  Ind.  264 122 

Harran  v.  Foley,  62  Wis.  584,  22  N.  W.  837 30 

Harrell  v.  Miller,  35  Miss.  700 46 

Harrington  v.  King,  121  Mass.  269 90 

V.  Stratton,  22  Pick.  510 120 


282  OASES   CITED. 

Pag©- 

Harris  v.  Fowle,  cJted  In  Barbe  v.  Parker,  1  H.  Bl.  287 4 

V.  Hanover  Nat.  Bank,  15  Fed.  786 109- 

V.  Pratt,  17  N.  Y.  249 ^ 221 

V.  Runnels,  12  How.  79,  84 140 

V.  Smith,  3  Serg.  &  R.  20 85 

V.  Sumner,  2  Pick.  137 120 

V.  Waite,  51  Vt.  480 172 

Harrison  v.  Colton,  31  Iowa,  16.... ► 143 

V.  Fane,  1  Man.  &  G.  550 « -.       9 

V.  Luke,  14  Mees.  &  W.  139 4 

Hart  V.  Mills,  15  Mees.  &  W.  85 31,  188 

V.  Prater,  1  Jur.  623 9 

V.  Sattley,  3  Camp.  528 57 

Harvey  v.  Graham,  5  Add,  &  E.  61,  73 73 

V.  Harris,  112  Mass.  32 29 

V.  Merrill,  150  Mass.  1,  22  N.  E.  49 144,  145 

V.  Stevens,  43  Vt.  653,  657 69,  78 

V.  Varney,  98  Mass.   118 128 

Haskell  v.  Greely,  3  Greenl.  (Me.)  425 131 

V.  Hunter,  23  Mich.  305 233 

T.  McHenry.  4  Cal.  411 228 

V.  Rice,  11  Gray,  240,  241 208,  212,  213 

Haskins  v.  Warren,  115  Mass.  514,  533,  534 84,  210 

Haslack  v.  Mayers,  26  N.  J.  Law,  284 190 

Hastie  v.  Couturier,  9  Exch.  102,  5  H.  L.  Cas.  673,  reversing  8  Exch.  40. .     23 

Hastings  v.  Lovering,  2  Pick.  214 156 

Hatch  V.  Douglas,  48  Conn.  116 144 

V.  Oil  Co.,  100  U.  S.  124,  130,  136 82,  98^ 

Hatstat  V.  Blakeslee,  41  Conn.  301 130 

Haviland  v.  Johnson,  7  Daly,  297 91 

Hawes  v.  Forster,  1  Moody  &  R.  368 80 

Hawkins  v.  Chase,  19  Pick.  502,  505 71,  76,  77 

V.  Davis,  8  Baxt.   506 123 

T.  Graham,  149  Mass.  284,  21  N.  E.  312 154 

T.  Pemberton,  51  N.  Y.  198. 156,  171 

Hawley  v.  Keeler,  53  N.  Y.  114 160 

HaxaU  v.  Willis,  15  Grat.  434,  442,  445 88 

Hayden  v.  Demets,  53  N.  Y.  426,  431 85,  229,  234 

Hays  V.  Jordan,  85  Ga.  749,  11  S.  B.  833 29 

V.  Moullle,  14  Pa.  St  48 216,  217 

Hazard  v.  Day,  14  Allen,  487 142 

Head  v.  Diggon,  3  Man.  &  R.  97 2T 

V.  Goodwin,  37  Me.   182 24 

V.  Tattersall,  L.  R,  7  Exch.  7 93- 


CASES   CITED.  283 

Page 

Headrlck  ▼.  Brattaln,  63  Ind.  438 25 

Heald  v.  Builders'  Ins.  Co.,  Ill  Mass.  88 25 

Heath  v.  Stevens,  48  N.  H.  251 7 

Hecht  V.  Batcheller,  147  Mass.  335,  17  N.  E.  651 30 

Hedden  v.  Roberts,  134  Mass.  40 190 

Heilbutt  V.  Hickson,  L.  R.  7  O.  P.  438,  450,  451,  456 158,  174,  175,  242 

Hellings  v.  Russell,  33  Law  T.  (N.  S.)  380 20 

Hemmer  v.  Cooper,  8  Allen,  334 114 

Henderson  v.  Gibbs,  39  Kan.  679,  684,  18  Pac.  926 123 

Hennlston  v.  Ham,  9  Fost.  (N.  H.)  501 33 

Henshaw  v.  Robins,  9  Mete.  (Mass.)  83,  88 156,  103 

Hepburn  v.  Sewell,  5  Har.  &  J.  211 31 

Herman  v.  Haffenegger,   54  Cal.   161 122 

Herrin  v.  Libbey,  36  Me.  357 124 

Herring  v.  Hoppock,  15  N.  Y.  409 90 

V.  Skaggs,   62  Ala.   180 248,  249 

Hersey  v.  Benedict,  15  Hun,  282 120 

Hervey  r.  Rhode  Island  Locomotive  Works,  93  U.  S.  664 29,  32,  90 

Heryford  v.  Davis,  102  U,  S.  235 90 

Hessing  v.  McCloskey,  37  111.  341 126 

Hewes  v.  Jordan,  39  Md.  472,  483,  484 54,  59 

Hewison  v.  Guthrie,  2  Bing.  (N.  C.)  755 207 

Hewson-Herzog  Supply  Co.  v.  Minnesota  Brick  Co.,  55  Minn.  530,  57  N. 

W.   129 236 

Heyman  v.  Neale,  2  Camp.  337 77,  79,  80 

Heysham  v.  Dettre,  89  Pa.  St.  506 48 

Hey  worth  v.  Hutchinson,  L.  R.  2  Q.  B.  447,  451,  36  Law  J.  Q.  B.  270.  .175,  243 

Hibblewhite  v.  McMorine,  5  Mees.  &  W.  462 26 

Hickman  v.  Haynes,  L.  R.  10  C.  P.  598 237 

Hicks  V.  Stevens,  121  111.  186,  11  N.  E.  241 118 

Hieskell  v.  Farmers'  &  Mechanics'  Nat.  Bank,  89  Pa.  St.  155 107 

Higgins  V.  Delaware,  L.  &  W.  R.  Co.,  60  N.  Y.  553,  557 154,  194 

V.  Moore,  34  N.  Y.  417 203 

V.  Murray,  4  Hun,  565,  73  N.  Y.  252 101,  103 

V.  Senior,  8  Mees.  &  W.  834 70 

HIggons  V.  Burton,  26  Law  J.  Exch.  342 22,  123 

Hight  V.  Bacon,  126  Mass.  10 170 

V.  Ripley,  19  Me.  137 87,  42 

HIU  V.  Blake,  97  N.  Y.  216 73 

V.  Freeman,  3  Cash.  257 91 

V.  HeUer,  27  Hun,  416 189 

V.  McDonald,  17  Wis.  97,  100 56,  199 

V.  North,  34  Vt  604 164 

V.  Rewee,  11  Mete.  (Mass.)  268,  271,  272 109,  111 


284  CASES   CITED. 

Page 
Hill  V.  Smith,  34  Vt  535 237 

V.  Spear,  50  N.  H.  253 135 

Hinchman  v.  Lincoln,  124  U.  S.  38,  8  Sup.  Ct  369 66,  61 

Hinckley  v.  Pittsburgh  Bessemer  Steel  Co.,  121  U.  S.  264,  7  Sup.  Ct  875. .  233 
Hinde  v.  Llddell,  L.  R.  10  Q.  B.  265 237 

V.  TMiitehouse,  7  East,  558. 43,  53,  74,  77 

Hinds  V.  Kellogg  (Com.  PI.  N.  Y.)  13  N.  Y.  Supp.  922 41 

Hine  V.  Roberts,  48  Conn.  267 91 

Hirsch  v.  Richardson,  65  Miss.  227 126 

Hirschorn  v.  Canney,  98  Mass.  149 85,  90 

Hirth  V.  Graham,  50  Ohio  St  57,  33  N.  E.  90 40 

Hitchcock  V.  Giddings,  4  Price,  135,  140 •*26 

Hoadly  v.  McLaine,  10  Blng.  482,  487 31,  33,  71 

Hoare  v.  Rennle,  5  HurL  &  N.  19,  29  Law  J.  Exch.  73 193,  194 

Hobart  V.  Littlefleld,  13  R.  I.  341 100,  106 

Hobbs  V.  Carr,  127  Mass.  532 131 

V.  Massasolt  Whip  Co.,  158  Mass.  194,  33  N.  E.  495 56,  200 

Hochster  v.  De  la  Tour,  2  El.  &  Bl,  678 159 

Hocking  v.  HamUton,  158  Pa.  St.  107,  115,  27  Atl.  836 185 

Hodges  V.  Kowing,  58  Conn.  12,  18  Atl.  979 75 

Hodgson  V.  Le  Bret  1  Camp.  233 55 

V.  Loy,  7  Term  R.  442 219 

V.  Temple,  5  Taunt  181 135 

Hoe  V.  Sanborn,  21  N.  Y.  552 171,  172 

Hoffman  v.  Carow,  20  Wend.  21,  22  Wend.  285 17,  18 

V.  King,  58  Wis.  314,  17  N.  W.  136 188,  189 

V.  Noble,  6  Mete.  (Mass.)  68 22,  122 

Hoglns  V.  Plympton,  11  Pick.  97,  99 156,  162 

Holblrd  V.  Anderson,  5  Term  R.  235 126 

Holbrook  v.  Burt,  22  Pick.  546 118 

T.  Connor,  60  Me.  578 113,  114 

V.  Setchel,  114  Mass.  435 32 

Holden  Steam  Mill  v.  Westervelt  67  Me.  446 190 

Holdom  V.  Ayer,  110  111.  448 118 

HoUand  v.  Rea,  48  Mich.  218,  224,  12  N.  W.  167 229 

V.  Swain,   94  111.   154 123 

HoUoway  v.  Jacoby,  120  Pa.  St.  583,  15  Atl.  487 156,  247 

Ilolman  v.  Johnson,  1  Cowp.  341 146 

Holmes  v.  Blogg,  8  Taunt.  508 7 

V.  Gregg  (N.  H.)  28  Atl.  17 197 

T.  Hoskins,  9  Exch.  753 62 

Holroyd  v.  Marshall,  10  H.  L,  Cas.  191,  33  Law  J.  Ch.  193 25 

Holt  V.  Clarencieux,  2  Strange,  937,  938 7 

T.  O'Brien,  15  Gray,  311 148 


CASES   CITED.  285 

Page 

Home  Ins.  Co.  y.  Heck,  65  HI.  Ill 9S 

Homer  v,  Perkins,  124  Mass.  431,  433 113,  114 

Honck  V.  MuUer,  7  Q.  B.  Div.  92 193 

Hood  V.  Bloch,  29  W.  Va.  244,  11  S.  E.  910 17a 

Hook  V.  Monre,  17  Iowa,  195 128 

Hooker  v.  Knab,  26  Wis.  511 66 

Hoover  v.  Maher,  51  Mimi.  269,  53  N.  W.  646 102 

r.  Peters,  18  Mich.  51 173 

y.  Sidener,  98  Ind.  290 243 

Hope  V.  Hayley,  5  El.  &  Bl.  830,  25  Law  J.  Q.  B.  155 24 

Hopkins  v.  Tanqueray,  15  C.  B.  130,  23  Law  J.  C.  P.  162 162 

Hornby  v.  Lacy,  6  Manle  «&  S.  166 20a 

Horncastle  v,  Farran,  3  Barn.  &  Aid.  497 207 

Home  V.  Midland  Ry.  Co.,  L.  R.  7  C.  P.  583,  591,  L.  R.  8  C.  P.  131 239 

Horr  y.  Barker,  8  Cal.  603,  11  Cal.  393 95,  96 

HorsfaU  v.  Thomas,  1  Hurl.  &  C.  90 118 

Horton  v.  Buffinton,  105  Mass.  399 146 

V.  McCarty,  53  Me.   394 78 

Hosack  V.  Weaver,  1  Yeates,  478 ,. . .     18 

Hosmer  y.  Wilson,  7  Mich.  294,  295 158,  159,  233 

Hotchkiss  V.  Higgins,  52  Conn.  205 93 

Hotham  y.  East  India  Co.,  1  Term  R.  645 158 

Hough  y.  Rawson,  17  111.  588 179 

Houghtaling  v.  Ball,  20  Mo.  563 81 

House  y.  Alexander,  105  Ind.  109,  4  N.  E.  891 7 

Hovey  y.  Hobson,  53  Me.  451 13 

Howard  v.  Daly,  61  N.  Y.  362 159 

y.   Emerson,   110  Mass.  320 174 

y.  Harris,  8  Allen,  297 4 

y.  Hoey,  23  Wend.  350 173 

Howe  y.  Batchelder,  49  N.  H.  204 46 

y.  Hayward,  108  Mass.  54 65 

V.  Palmer,  3  Barn.  &  Aid.  321 59 

y.  Smith,  27  Ch.  Div.  89,  101 65 

Howell  V.  Coupland,  L.  R.  9  Q.  B.  462,  1  Q.  B.  Div.  258 161 

y.  Stewart,  54  Mo.  400 136 

Howe  Mach.  Co.  v.  Willie,  85  111.  333 109 

Howley  v.  Whipple,  48  N.  H.  487 78 

Hoyt  v.  Casey,  114  Mass.  397 10 

Hubbard,  Ex  parte,  17  Q.  B.  Div.  698 3 

v.  Bliss,  12  Allen,  590 91 

y.  George,    49   111.   275 174 

Hubbell  V.  Flint,  13  Gray,  277,  279 136 

v.  Meigs,  50  N.  Y.  480,  487 ^ ^  ^  .^ 120 


286  CASES    CITED. 

P*C* 

Hudflon  T.  Weir,  29  Ala.  294 ^^^,,^     44 

Huff  V.  McCauley,  63  Pa.  St  208 « ^     47 

Hughes  V.  Kelly,  40  Conn.  148 ^ 91 

Hulet  V.   Stratton,   5   Gush,   539 146 

Humaston  v.  Telegraph  Co.,  20  Wall.  20,  28 83,  154 

Humble  v.  Mitchell,  11  Add.   &  E.  205 44 

Humphreys  v.  Comline,  8  Blackf.  516 174 

Humphreysville  Copper  Co.  v.  Vermont  Copper  Min.  Co.,  33  Vt.  92 236 

Humphries  v.  Carvalho,  16  East,  45 92 

Huun  V.  Bowne,  2  Caines,  38 212 

Hunt  V.  Hecht,  8  Exch.  814,  22  Law  J.  Exch.  293 55,  57,  58 

V.  Massey,  5  Barn.  &  Adol.  902 7 

V.  Sackett,    31    Mich.    18 166 

V.  Wyman,   100  Mass.   198 92 

Hunter  v.  Bosworth,  43  Wis.  583,  586 24,  26 

V.  State,  55  Ark.  357,  18  S.  W.  374 101 

V.  Talbot,  3  Smedes  &  M.  754 208 

V.  Wetsell,  57  N.  Y.  375,  84  N.  Y.  549 65,  60,  185 

Huntington  v.  Hall,  36  Me.  501 166 

Hurd  V.  Fleming,  34  Vt.  169 90 

Hurff  V.  Hires,  40  N.  J.  Law,  581 95 

Huschle  V.  Morris,  131  111.  587,  23  N.  E.  643 130 

Hussey  V.  Horne-Payne,  4  App.  Cas.  311,  315,  320,  323 72 

V.  Thornton,  4  Mass.  404 ►. 90 

Hutcheson  v.  Blakeman,  8  Mete.  (Ky.)  80 27 

Hutchings  v.  Nunes,  1  Moore,  P.  C.  (N.  S.)  243 216 

Hutchins  V.  Gilchrist,  23  Vt  82 181 

V.  Sprague,  4  N.   H.  469 128 

Hutchinson  v.  Ford,  9  Bush,  318 25 

V.  Hunter,  7  Pa.  St  140 95 

Hutchison  v.  Bowker,  5  Mees.  &  W.  535 27 

Huthmacher  v.  Harris'  Adm'rs,  38  Pa.  St.  491 32 

Hutton  V.  Lippert  8  App.  Gas.  309 30 

Hyde  V.  Lathrop,  2  Abb.  Dec.  436 .^ 99 

V.  Wrench,   3   Beav.  334 ^     27 

Hydraulic  Engineering  Co.  v.  McHaffle,  4  Q,  B.  Div.  670 240 

Hynds  T.  Hays,  25  Ind.  31 148 


laslgl  V.  Rosensteln,  65  Hun,  591,  20  N.  Y.  Supp.  491 196 

Ide  V.  Stanton,  15  Vt  685 37,  71 

Ijams  V.  Hoffman,  1  Md.  423 77 

Illinois  Land  &  Loan  Co.  v.  Speyer,  138  III.  137,  27  N.  E.  931 139 


CASES    CITED.  287 

Page 

Ilsley  V.  Stubbs,  9  Mass.  65 219 

Imperial  Bank  v.  London  &  St.  K.  Docks  Co.,  5  Ch.  Div.  195 215 

Imperial  Loan  Co.  v.  Stone  (1892)  1  Q,  B,  599 13 

Indiana  Manuf  g  Co,  v.  Hayes,  155  Pa.  St  160,  26  Atl.  6 31 

Ingalls  V.  Henick,  108  Mass.  351 131,  132 

Inglis  V.  Usherwood,  1  East,  515 221 

Ingraham  v.  Baldwin,  9  N.  Y.  45 12 

Inhabitants  of  Westfleld  v.  Mayo,  122  Mass.  100 103 

International  Pavement  Co.  v.  Smith,  Neggs  &  Rankin  Mach.  Co.,  17  Mo. 

App.  264 176 

Iron  Cliffs  Co.  v.  Buhl,  42  Mich.  86,  3  N.  W.  269 188 

Irons  V.  Kentner,  51  Iowa,  88,  50  N.  W.  73 3 

Irvine  v.  Stone,  6  Cush.  508 49 

Irwin  V.  Thompson,  27  Kan.  643 '. . . .  162 

V.  Williar,  110  U.  S.  499,  510,  4  Sup.  Ct.  160,  166 144 

Isherwood  v.  Whitmore,  10  Mees.  &  W.  757,  11  Mees.  &  W.  347 197 

Ives  Y.  Carter,  24  Conn.  392 , , ,  114 

J 

Jackson  v.  AUaway,  6  Man.  &  G.  942 179 

V.  Cadwell,  1  Cow.  623 19 

T.  Collins,  39   Mich.   557,   561 „ 114,  118 

T.  Covert,  5  Wend.  139 37 

V.  Lowe,  1  Bing.  9 73 

v.  Myers,  18  Johns.  425 128 

V.  Stanfield  (Ind.  Sup.)  37  N.  E.  14 81 

V.  Tupper,  101  N.  Y.  515,  5  N.  E.  65 65 

James  v.  Adams,  16  W.  Va.  245 159 

V.  Bockage,  45  Ark.  284 163 

V.  Griffin,  2  Mees.  &  W,  623 220,  222 

V.  Muir,  33  Mich.  223 33,  34,  71 

V.  Patten,  6  N.  Y.  9 , 76 

V.  Vane,  2  El.  &  El.  883,  29  Law  J.  Q.  B.  169 201 

Jamison  v.  Simon,  68  Cal.  17,  8  Pac.  502 59 

Janney  v.  Sleeper,  30  Minn.  473,  16  N.  W.  365 183 

Janvrin  v.  Maxwell,  23  Wis.  51 62 

Jaulerry  v.  Britten,  5  Scott,  655,  4  Bing.  N.  C.  242 ^     20 

Jeffrey  v.  Bigelow,  13  Wend.  518 112 

Jendwine  v.  Slade  [1797]  2  Esp.  572 163 

Jenkins  v.  Jarrett,  70  N.  C.  255 84 

Jenks  V.  Fulmer,  160  Pa.  St.  527,  28  Atl.  841 220 

Jenkyns  v.  Brown,  14  Q.  B.  496,  19  Law  J.  Q.  B.  286 3,  107 

T.  Usborne,  7  Man.  &  G.  678,  8  Scott,  N.  R.  505 20,  215 


288  CASES    CITED. 

Pace 

Jenner  v.  Smith,  L.  R.  4  C.  P.  270 98 

Jenness  v.  Mt  Hope  Iron  Ck).,  53  Me.  20 72 

V.  Wendell,  51  N.  H.  63 BO 

Jewell  V.  Knight,  123  U.  S.  428,  434,  8  Sup.  Ct  193 12G 

Jewett  V.  Lincoln,  14  Me.  116 130 

V.  Warren,  12  Mass.  300 181 

J.  M.  Brunswick  &  Balke  Co.  v.  Valleau,  50  Iowa,  120 13a 

Johnson  v.  Allen,  78  Ala.  387 237 

V.  Buck,  35  N.  J.  Law,  338,  342,  343 43,  71,  74,  77,  78 

V.  Credit  Lyonnais  Co.,  2  C.  P.  Div.  224,  affirmed  3  C.  P.  Div.  32 20,  21 

V.  Cuttle,  105  Mass.  447 57 

V.  Delbridge,  35  Mich.  436 71 

V.  Dodgson,  2  Mees.  &  W.  053 76 

V.  Elwood,  53  N.  Y.  431 84 

V.  Farnum,  56  Ga.  144 210 

V.  Filkington,  39  Wis.  62 28 

V.  Hulings,  103  Pa.  St.  498. 141 

V.  Hunt,  11  Wend.  135 « 101 

V.  Latimer,  71  Ga.  470 176 

V.  Lines,  6  Watts  &  S.  80 ...^.... 10,  11 

V.  Monell,  41  N.  Y.  655 114 

V.  Phoenix  Ins.  Co.,  112  Mass.  49 153 

V.  Raylton,  7  Q.  B.  Div.  438 175 

V.  Trinity  Church,  11  Allen,  123 68 

V.  Whitman  Agricultural  Co.,  20  Mo.  App.  101 244 

Johnston  v.  Fessler,  7  Watts,  48 28 

Johnstone  v.  Marks,  19  Q.  B.  Div.  509 10 

V.  Milling,  16  Q.  B.  Div.  460 158,  159 

Jonassohn  v.  Young,  4  Best  &  S.  296,  32  Law  J.  Q.  B.  385 193 

Jones  V.  Baldwin,  12  Pick.  316 3 

V.  Bowden,  4  Taunt.  847 169 

V.  Brewer,  79  Ala.  545 107 

V.  Bright,  5  Bing.  533 172 

V.  Clifford,  3  Ch.  Div.  779 28 

V.  Dow,  142  Mass.  130,  7  N.  E.  839 69 

V.  Earl,  37  Cal.  630 225,  226 

V.  Flint,  10  Adol.  &  E.  753 48 

V.  George,  56  Tex.  149,  61  Tex.  345,  349 157,  249 

V.  Gibbons,  8  Exch.  920 186 

V.  Just,  L.  R.  3  Q.  B.  197,  203,  37  Law  J.  Q.  B.  89 172,  173,  248 

V.  Kemp,  49  Mich.  9,  12  N.  W.  890 3 

T.  King,  86  111.  225 128 

T.  Mechanics'  Bank,  29  Md.  287 67 

T.  Padgett,  24  Q.  B.  Div.  650 ^ 177 


OASES   CITED.  289 

Page 

Jones  r.  Reynolds,  120  N.  T.  213,  24  N.  B.  279 66 

T.  Richardson,  10  Mete.  (Mass.)  481 -     24 

V.  Ryde,  5  Taunt.  488 ...« ....« 110 

V.  U.  S.,  96  U.  S.  24 ^ 155,  160,  161 

V.  Walte,  5  Blng.  N.  C.  341 148 

Jordan  v.  Norton,  4  Mees.  &  W.  155 27 

V.  Parker,  66  Me.  557 123 

Joseph  V.  Lyons,  15  Q.  B.  Div.  280,  54  Law  J.  Q.  B.  3 26 

Joslin  V.  Go  wee,  52  N.  Y.  90 120 

JosUng  V.  Klngsford,  13  0.  B.  (N.  S.)  447,  32  Law  J.  C.  P.  94 156,  171 

Joyce  V.  Swann,  17  G.  B.  (N.  S.)  84,  100,  101 31,  32,  106 

Justice  T.  Lang,  42  N.  Y.  493 71,  75 


K 

Kadlsh  V.  Young,  108  111.  170 159,  232 

Kahn  v.  Klabunde,  50  Wis.  235,  238,  6  N.  W.  888 92,  93 

V.  Walton,  46  Ohio  St.  195,  20  N.  E.  203 144 

Kain  V.  Old,  2  Bam.  &  G.  627 162 

Kaye  v.  Brett,  5  Exch.  269 203 

Kearon  v.  Pearson,  7  Hurl.  &  N.  386,  31  Law  J.  Exch.  1 160 

Kearslake  v.  Morgan,  5  Term  R.  513 66 

Keeler  v.  Goodwin,  111  Mass.  490 96,  211,  212 

V.  Vandervere,  5  Lans.  313 , ^ 87 

Keln  V.  Tupper,  52  N.  Y.  550,  555 31,  88 

Kelwert  v.  Meyer,  62  Ind.  587 57 

Keller  v.  Strasberger,  90  N.  Y.  379 234 

Kellogg  y.  Turple,  93  lU.  265 120 

V.  WItherhead,  6  Thomp.  &  C.  525 56 

Kellogg  Bridge  Co.  v.  Hamilton,  110  U.  S.  108,  3  Sup.  Ct.  537 172 

Kelsea  v.  Ramsey  &  Gore  Manuf  g  Co.,  55  N.  J.  Law,  320,  26  Atl.  907 100 

Kemp  V.  Falk,  7  App.  Cas.  573,  581,  585,  586,  588 220,  222-22G 

V.  Watt,  15  Mees.  &  W.  672 202 

Kempson  v.  Saunders,  4  Blng.  5 109 

Kendal  v.  Marshall,  11  Q.  B.  Div.  356 222 

Kendall  v.  May,  10  Allen,  59 14 

V.  Wilson,   41    Vt    567 118 

Kennedy  v.  Duncklee,  1  Gray,  65 ►«     19 

V.  Richardson,  70  Ind.  524 113 

T.  Whitwell,  4  Pick.  466 241 

Kenner  v.  Harding,  85  111.  264 114,  163,  164 

Kent  V.  Bornsteln,  12  Allen,  342 122 

V.  Friedman,  101  N.  Y.  616,  3  N.  E.  905 248 

V.  Husklnson,  3  Bos.  &  P.  233 .^...     55 

SALES— 19 


290  CASES    CITEI). 

Page 

Kent  Iron  &  H.  Co.  ▼.  Norbeck,  150  Ta.  St.  559,  24  Atl.  737. . . .  ►. 83 

Kenworthy  v.  Schofleld,  2  Barn.  &  C.  945 43,  73,  74 

Kerkhof  v.  Atlas  Paper  Co.,  68  Wis.  674,  32  N.  W.  7G6 . .  „ 65 

Kern  v.  Thurber,  57  Ga.  172 123 

Kerr  v.  Shrader,  1  Wkly.  Notes  Cas.  33 50 

Ketcbum  v.  Catlin,  21  Vt.  191 29 

Kibble  V.  Gough,  38  Law  T.  (N.  S.)  204 58 

Kidder  v.  Blake,  45  N.  H.  530 ^ 148 

Kilmore  v.  Howlett,  48  N,  Y.  569 46 

Kimball  v.  Bangs,  144  Mass.  321,  11  N.  E.  113 ^ 114 

V.  Cunningbam,  4  Mass.  502,  505 120,  121 

Kimbell  v.  Moreland,  55  Ga.  164 110 

Kimberly  v.  Patchln,  19  N.  Y.  330 95,  96,  102 

King  V.  Eagle  Mills,  10  Allen,  548 115 

V.  Inhabitants  of  Cbillesford,  4  Barn.  &  C.  100 7 

V.  Jarman,   35   Ark.    190 88 

Kingman  v.  Denison,  84  Mich.  608,  48  N.  W.  26 217,  220 

V.  Holmquist,  36  Kan.  735,  14  Pac.  168 90 

King  Phillip  Mills  v.  Slater,  12  R.  I.  82 194 

Kingsbury  v,  Kirwan,  77  N.  Y.  612 «  144 

V.  Smith,  13  N.  H.  109 122 

Kingsford  v.  Merry,  25  Law  J.  Exch.  166 22 

Kingsley  v.  Holbrook,  45  N.  H.  313 48 

V.  Johnson,   49  Conn.  462 163 

V.  White,  57  Vt.  565 181 

KInloch  V.  Craig,  3  Term  R.  119 215 

Kinney  v.  McDermott,  55  Iowa,  674,  8  N.  W.  656 146,  147 

Kinsey  v.  Leggett,  71  N.  Y.  387,  395 21,  123 

Kintzing  v.  McElrath,  5  Pa.   St.  467 112,  113 

Kirby  v.  Johnson,  22  Mo.  354 56,  63 

Kirtland  v.  Moore,  40  N.  J.  Eq.  106,  2  Atl.  269 153 

Kitchen  v.   Spear,  30  Vt.  545 220 

Kleeman  v.  Collins,  9  Bush.  460.  467 68 

Kline  v.  L'Amoureux,  2  Paige,  419 10 

Klinitz  V.  Surry,  5  Esp.  267 53,  69 

Knight  V.  Barber,  16  Mees.  &  W.  66,  16  L.  J.  Exch.  18 44 

V.  Mann,  118  Mass.  143,  145,  120  Mass.  219. 54,  60 

V.  New  England  Worsted  Co.,  2  Cush.  271,  287 152 

Knights  V.  Wiffen,  L.  R.  5  Q.  B.  660 22,  212 

Knoblauch  v.  Kronschnabel,  18  Minn.  300  (Gil.  272) 197,  200 

Knowlton  v.  Congress  &  Empire  Spring  Co.,  57  N.  Y.  518 147 

Kohl  V.   Llndley,  39   111.   195 170 

Kohn  V.  Melcher,  43  Fed.  041 136 

Kortlanderv.  Elston,  2  C.  C.  A.  657,  52  Fed.  180 91 


CASES   CITED.  291 

Page 

Kountz  T.  Klrkpatrlck,  72  Pa.  St.  376 236 

V.  Price,  40   Miss.   341 143 

Kraus  v.  Thompson,  30  Minn.  64,  14  N.  W.  266 120 

Kribs  V.  Jones,  44  Md.  396 236 

Kriete  v.  Myer,  61  Md.  558 71 

Krohn  v.  Bantz,  68  Ind.  277 65,  66 

Krulder  v.  Ellison,  47  N.  Y.  36 100 

Krumbhaar  v.  Birch,  83  Pa.  St.  426 167 

Kunkle  v.  Mitchell,  56  Pa.  St.  100 185 

Kyle  V.  Kavanagh,  103  Mass.  356 29 

L 

Ladd  V.  Dillingham,  34  Me.  316 148 

V.  King,  1  R.  I.  224,  231 73 

V.  Rogers,  11  Allen,  209 146,  147 

Laidlaw  v.  Organ,  2  Wheat.  178 112,  113 

Laing  v.  McCall,  50  Vt.  657 148 

Laird  v.  Pim,  7  Mees.  &  W.  474,  478 232 

Lamb  v.  Attenborough,  1  Best.  &  S.  831 20 

V.  Crafts,  12  Mete.  (Mass.)  356 40 

Lambert  v.  Heath,  15  Mees.  &  W.  487 110 

Lamm  v.  Port  Deposit  H.  Ass'n,  49  Md.  233 115 

Lamprey  v.  Sargent,  58  N.  H.  241 96 

Lancaster  Co.  Nat.  Bank  v.  Moore,  78  Pa.  St.  407 13 

Lane  v.  Chadwick,  146  Mass.  68,  15  N.  E.  121 101 

V.  Robinson,  18  B.  Mon.  623 115 

La  Neuville  v.  Nourse,  3  Camp.  351 4 

Lanfear  v.  Sumner,  17  Mass.  110 130-132 

Lang  V.  Henry,  54  N.  H.  57 72 

Langridge  v.  Levy,  2  Mees.  &  W.  519 117 

Langstaff  v.  Stix,  64  Miss.  171,  1  South.  97 222 

Langton  v.  Hlggins,  4  Hurl.  &  N.  402,  28  Law  J.  Exch.  252 24,  101 

Larmon  v.  Jordan,  56  111.  204 28 

Larned  v.  Andrews,  106  Mass.  435 141 

La  Rue  v.  Gilkyson,  4  Pa.  St.  375 14 

Latham  v.  Sumner,  89  111.  233 91 

Laughton  v.  Harden,  68  Me.  208 126 

Lavery  v.  Pursell,  39  Ch.  Div.  508,  57  L.  J.  Ch.  Div.  570 47 

Law  V.  Hodson,  11  East,  300 141 

V.  Stokes,  32  N.  J.  Law,  249 203 

Lawes  V.  Purser,  6  El.  &  Bl.  930,  26  Law  J.  Q.  B.  25 110,  111 

Lawson  v.  Lovejoy,  8  Greenl.   (Me.)  405 8 

Y^awton  V.  Blitch,  83  Ga.  663,  10  S.  B.  353 144 


292  CASES    CITED. 

Pag* 

Laythoarp  r.  Bryant,  2  Bin?.  N.  C.  735,  747 81 

Leadbetter  v.  Etna  Ins.  Co..  13  Me.  265 ►.153 

Leask  v.  Scott,  2  Q.  B.  Div.  370 224 

Leather  Cloth  Co.  v.  Hieronimus,  L.  R.  10  Q.  B,  140 GS,  73 

Leavitt  V.  Files,  38  Kan.  26,  15  Pac.  891 13 

V.  Fletcher,    60    N.    H.    182 164 

Lee  V.  Bayes,  18  C.  B.  599 17 

V.  Cherry,  85  Tenn.  707,  4  S.  W.  835 68 

V.  Gaskell,  1  Q.  B.  DIv.  700,  45  Law  J.  Q.  B.  540 48 

V.  Griffin,  1  Best.  &  S.  272,  30  Law  J.  Q.  B.  252 38-40,  42 

V.  Hills,  66  Ind.  474 72 

V.  Kimball,  45  Me.  172 224 

V.  Muggerldge,  5  Taunt.  36 15 

Legg  V.  Wlllard,  17  Pick.  140 131 

Leggat  V.  Sands'  Ale  Brewing  Co.,  60  111.  158 173,  197 

Le  Grand  v.  Eufaula  Nat.  Bank,  81  Ala.  123,  1  South.  460 115 

Leith's  Estate,  In  re,  L.  R.  1  P.  C.  305 207 

Lemmon  v.  Beeman,  45  Ohio  St  505,  15  N.  E.  476 7 

Lenox  v.  Fuller,  39  Mich.  268 121 

Leonard  v.  Davis,  1  Black,  476,  483 64,  84,  88.  179,  181,  182,  201,  207 

Lemed  v.  Wannemacher,  9  Allen,  412,  416 68,  74 

Leroux  v.  Brown,  12  C.  B.  809 81 

Lesassier  v.  The"  Southwestern,  2  Woods,  35,  Fed.  Cas.  No.  8,274 224 

Lester  v.  McDowell,  18  Pa.  St.  91 *, . .     85 

Leven  v.  Smith,  1  Denio,  571 84 

Levy  V.  Green,  8  El.  &  Bl.  575,  27  Law  J.  Q.  B.  Ill,  1  El.  &  El.  969,  28 

Law  J.  Q.  B.  319 102,   189 

Lewis  V.  Greider,  51  N.  Y.  231 228 

V.  Lyman,  22  Pick.  437 25 

Y.  Rountree,  78  N.  C.  323 156,  171,  242,  247 

V.  Peake,   7   Taunt.    153... 249 

V.  Welch,  14  N.  H.  294 „ 142 

Libby  v.  Downey,  5  Allen,  299 141 

Lickbarrow  v.  Mason,  2  Term  R.  63,  1  H.  Bl.  357,  2  H.  Bl.  211,  6  East,  20, 

note,  5  Term  R.  683,  1  Smith,  Lead.  Cas.  (Ed.  1887)  737 223 

Lightburn  v.  Cooper,  1  Dana,  273 243 

Lillie  V.  Dunbar,  62  Wis.  198,  22  N.  W.  467 46 

Lilly  white  v.  Devereux,  15  Mees.  &  W.  285 64 

Lincoln  v.  Buckmaster,  32  Vt  652 12 

V.  Gallagher,  79  Me.  189,  8  Atl.  883 185,  197 

Llndon  v.  Eldred,  49  Wis.  305,  5  N.  W.  862 228 

Llnforth,  In  re,  4  Sawy.  370,  Fed.  Cas.  No.  8,369 20 

Lingham  y.  Eggleston,  27  Mich.  324,  329 83,  87,  88 

Linton  v.  Porter,  31  111.  107 ^^ 167 


CASES   CITED*  298 

Page 

Litchfield  Y.  Hutchinson,  117  Mass.  195 116 

Litt  T.  Cowley,  7  Taunt.   169 *»,.^.,^^^  225 

Littauer  r.  Goldman,  72  N.  Y.  506..  « *.,^^^  110 

Livermore  v.  Boutelle,  11  Gray,  217. .  « ^ 128 

Load  V.  Green,  15  Mees.  &  W.  216 114 

Lobdell  V.  Hopkins,  5  Cow.  516 183 

Lock  V.  Sellwood,  1  Q.  B.  736 19 

Locke  V.  Smith,  41  N.  H.  346 11 

V.  Williamson,  40  Wis.  377 245 

Lockhart  v.  Bonsall,  77  Pa.  St.  53 185,  18S,  189 

Loeb  V.  Peters,  63  Ala.  243 216,  217,  224 

Loeflfel  V.  Pohlman,  47  Mo.  App.  574 123 

Loeschman  v.  Machin,  2  Starkle,  311 20 

Logan  V.  Le  Mesurier,  6  Moore,  P.  C.  116 87 

London  &  N.  W.  Ry.  Co.  v.  Bartlett,  7  Hurl.  &  N.  400,  31  Law  J.  Exch, 

92    220 

Long  V.  Hartwell,  34  N.  J.  Law,  116,  127 73 

V.  Hickingbottom,  28  Miss.  773 166 

V.  Millar,  4  C.  P.  Dlv.  450 74 

V.  Woodman,  58  Me.   49 114 

Lord  V.  Goddard,  13  How.  198 115 

V.  Price,  L.  R.  9  Exch.  54 227 

Lorymer  v.  Smith,  1  Barn.  &  C.  1 197,  198 

Loser  v.  Board,  92  Mich.  633,  52  N.  W.  956 138 

Louisville  Asphalt  Varnish  Co.  v.  Lorick,  29  S.  C-  533,  8  S.  E.  8 68,  74 

Lovejoy  v.  Murray,  3  Wall.  1,  16 31 

V.  Mlchels,  88  Mich.  15,  49  N.  W.  901 33,  34 

Low  V.  Andrews,  1  Story,  38,  Fed.  Cas.  No.  8,559 100 

V.  Pew,    108   Mass.    347 26 

Lowber  v.  Bangs,  2  Wall.  728 151 

Lucas  V,  Dixon,  22  Q.  B.  Div.  357 69 

V.  Nichols,  5  Gray,  311 185 

Ludwig  V.  Fuller,  17  Me.  162 131 

Lunn  V.  Thornton,  1  C.  B.  379,  14  Law  J.  C.  P.  161 24 

Lupin  T.  Marie,  6  Wend.  77 -..  210 

Lynch  v.  O'Donnell,  127  Mass.  311 87 

y.  Wlllford  (Minn.)  59  N.  W.  311 --     92 

Lyon  V.  Bertram,  20  How.  149,  154 243,  245 

Lyons  V.  Brlggs,  14  R.  L  222 113 

Lytle  T.   State,   17  Ark.  663 139 


294  GABE8   CITSD. 


M 

Page 

Maberley  r.  Sheppard,  10  Blng.  99..  « 55 

McAleer  v.  Horsey,  35  Md.  439 117 

McArthur  v.   Bloom,  2  Duer,   151 15 

McBride  v.  Sllverthome,  11  U.  C.  Q.  B.  545 33 

McCabe  v.  McKInstry,  5  Dill.  509,  Fed.  Cas.  No.  8,G67 3 

McCafifrey  v.  Woodin,  65  N.  Y.  459 24,  26 

McCarren  v.  McNulty,  7  Gray,  139 164 

McCarthy  v.  Henderson,  138  Mass.  310 ^       7 

V.  Nash,  14  Minn.  127  (Gil.  95) 53 

McCarty  v.  Blevlns,  5  Yerg.  195 25 

McClain  v.  Davis,  77  Ind.  419 -     12 

McClintock's  Appeal,  71  Pa.  St.  365 47 

McClung  V.  Kelley,  21  Iowa,  508,  511 88 

McClure  v.  Briggs,  58  Vt.  82,  2  Atl.  583 154 

V.  Jefferson,  85  Wis.  208,  54  N.  W.  777 197,  248 

V.  Williams,  5  Sneed,  717 « 229 

McClurg  V.  Kelley,  21  Iowa,  508 173 

McComb  V.  Donald's  Adm'r,  82  Va.  903,  5  S.  E.  558 90 

V.  Wright,  4  Johns.   Ch.  659 77 

McCombs  V.  McKennan,  2  Watts  &  S.  216 228 

McConnel  r.  Murphy,  L.  R.  5  P.  C.  203 191 

McConnell  v.  Brillhart,  17  111.  354 69,  76 

V,  Hughes,   29   Wis.   537 83 

V.  Kitchens,  20  S.  C.  430 141 

McCormick  v.  Basal,  46  Iowa,  235 159 

V.  Hamilton,  23   Grat   561 232 

▼.  Kelly,  28  MimL  135,  138,  9  N.  W.  675 164 

V.  Littler,  85   111.   62 14 

y.  Vanatta,  43  Iowa,  389 249 

McCormick  Harvesting  Mach.  Co.  v.  Chesrown,  33  Minn.  32,  21  N.  W.  846 

154,  200 

McCown  V.  Mayer,  65  Miss.  537,  5  South.  98 25 

McCray  Refrigerator  &  C.  S.  Co.  v.  Woods,  99  Mich.  269,  58  N.  W.  320. .  172 

McCrea  v.  Purmort,  16  Wend.  460 75 

McCrillis  V.  Allen,  57  Vt  505 123 

McCulloch  V.  McKee,  16  Pa.  St.  289 203 

McDermid  v.  Redpath,  39  Mich.  372 237 

Macdonald  v.  Longbottom,  28  Law  J.  Q.  B.  293,  1  El.  &  El.  977,  29  Law 

J.  Q.  B.  256 72 

McDonald  Manuf'g  Co.  v.  Thomas,  53  Iowa,  558,  5  N.  W.  737 163 

McElroy  v.  Seery,  61  Md.  389 69,  221 

McEwan  v.  Smith,  2  H.  L.  Cas.  309 20,  211,  212 


CASES    CITED.  295 

Pag* 

McEwen  r.  Morey,  60  HI.  32 ^..►.  «  33 

McFetrldge  v.  Piper,  40  Iowa,  627 .....222 

McGrath  v.  Cannon  (Minn.)  57  N.  W.  150 Ill 

V.  Gegner,  77  Md.  831,  26  Atl.  502 236 

McGraw  v.  Fletcher,  35  Mich.  104 17G 

V.  Gilmer,  83   N.   C.   162 207 

V.  Solomon,  83  Mich.  442.  47  N.  W.  345 123 

McGrew  v.  City  Produce  Exchange,  85  Tenn.  572,  4  S.  W.  38 144 

McHose  V.  Fulmer,  73  Pa.  St.  365 237 

Mcintosh  V.  Brill,  20  U.  C.  C.  P.  426 27 

Mclntyre  v.  Parks,  3  Mete.  (Mass.)  207 135 

Mack  V.  Story,  57  Conn.  407,  18  Atl.  707 90 

McKanna  v.  Merry,  61  111.  177 9-11 

Mackaness  v.  Long,  85  Pa.  St.  158 89 

McKee  v.  Garcelon,  60  Me.   165 131 

Mackellar  v.  Pillsbury,  48  Minn.  396,  51  N.  W.  222 96 

McKercher  v.  Curtis,  35  Mich.  478 23G 

Mackey  V.  Swartz,  60  Iowa,  710,  15  N.  W.  576 200 

McKibbIn  v.  Martin,  64  Pa.  St.  352 129 

McKindly  v.  Dunham,  55  Wis.  515,  13  N.  W.  485 203 

McKinnell  v.  Robinson,  3  Mees.  &  W.  435 . . 135 

McKinney  v.  Andrews,  41  Tex.  363 135 

V.  Bradlee,  117  Mass.  321 93 

McKnight  v.  Dunlap,  5  N.  Y.  537 52 

McLane  v.  Johnson,  43  Vt.  48 - 128 

McLaughlin  v.  Piatti,  27  Cal.  451 95 

Maclay  v.  Harvey,  90  111.  525 27 

McLay  v.  Perry,  44  Law  T.  (N.  S.)  152 191 

Maclean  y.  Dunn,  4  Bing.  722 77,  227 

V.  NicoU,  7  Jur.  (N.  S.)  999 71,  72 

McMillan  v.  Larned,  41  Mich.  521,  2  N.  W.  662 91 

McMinn  V.  Riehmonds,  6  Yerg.  9 11 

McMuUen  v.  Helberg,  4  L.  R.  Ir.  94,  6  L.  R.  Ir.  463 72 

V.  Riley,  6  Gray,  500 49 

McNeal  v.  Braun,  53  N.  J.  Law,  617,  23  Atl.  687 87,  100 

Macomber  v.  Parker,  13  Pick.  175,  183 88 

McPherson  t.  Walker,  40  111.  372 159 

McQuaid  v.  Ross,  85  Wis.  492,  55  N.  W.  705 171 

Maddison  v.  Alderson,  8  App.  Cas.  467,  488 81 

Magee  v.  Billingsley,  3  Ala.  679 175 

V.  Scott,  9  Cush.  148 147 

Magruder  v.  Gage,  33   Md.   344 100 

Mahoney  v.  McLean,  26  Minn.  415,  4  N.  W.  784 200 

Maillard  v.  Duke  of  Argyle,  6  Man.  &  Q.  40 202 


296  CASES    CITED. 

Paw 

Malone  v.  Plato,  22  Cal.  103 63 

Mamlock  v.  Fairbanks,  46  Wis.  415,  1  N.  W.  167 ^  115 

Manby  v.  Scott,  1  Sid.  112 14 

Mandlebaum  v.  Gregovich,  17  Nev.  87,  28  Pac.  121 141 

Mann  v.  Everston,  32  Ind.  355 173 

Manning  v.  Albee,  11  Allen,  520 ..^ 113 

Manning's  Case,  8  Coke,  94b 19 

Mansfield  v.  Converse,  8  Allen,  182 ^       3 

V.  Trigg,  113  Mass.  350,  352 „  111 

Marbury  v.  Brooks,  7  Wheat.  556,  11  Wheat.  78 126 

March  v.  Wright,  46  111.  487 29 

Margetson  v.  Wright,  7  Blng.  603,  8  Bing.  454 164 

Markham  v.  Jaudon,  41  N.  Y.  235,  242 64 

Marsden  v.  Cornell,  62  N,  Y.  215 32 

Marsh  v.  Falker,  40  N.  Y.  562 110 

V.  Hyde,  3  Gray,  331 52,  05 

T.  Keating,  1  Bing.  N.  C.  198,  2  Clark  &  F.  250 IT 

V.  McPherson,  105  U.  S.  709 236,  247 

V.  Pier,   4    Rawle,   273 ^ .-«     82 

V.  Rouse,  44  N.  Y.  643 61 

V.  Webber,  13  Minn.  109  (Gil.  99) 112 

Marshall  v.   Drawhorn,  27  Ga.  275,  279 164 

V.  Duke,   51  Ind.  62 160 

T.  Ferguson,  23  Cal.  66 48,  56 

V.  Green,  1  C.  P.  DIv.  35,  42 44,  46-48,  64 

V.  Lynn,  6  Mees.  &  W.  109 73 

V.  Perry,  67   Me.  78 244 

V.  Rutton,  8  Term    R.   545 15 

Martin  v.  Adams,  104  Mass.  262 93,  210 

V.  Clarke,  8  R.   I.  389 139 

Martindale  v.  Booth,  3  Barn.  &  Adol.  498 127 

V.  Smith,  1  Q.  B.  389,  395 83,  155,  208,  226,  234 

Marvin  v.  WalUs,  6  El.  &  Bl.  726,  25  Law  J.  Q.  B.  369 62 

Mary  and  Susan,  The,  1  Wheat.  25 100 

Maryland  Fertilizing  &  Manuf  g  Co.  v,  Lorentz,  44  Md.  218 152 

Mason  v.  Chappell,  15  Grat  572,  573,  583 115,  163,  172 

V.  Decker,  72  N,   Y.  595 229 

V.  Smith,  130  N.  Y.  474,  29  N.  E.  749 200 

V.  Wilson,  43  Ark.  172 220,  221 

T.  Wright,  13  Mete.  (Mass.)  306 7,  10 

Massey  v.  State,  74  Ind.  368 5 

Masson  r.  Bovet,  1  Denio,  69 121 

Materne  v.  Horwitz,  50  N.  Y.  Super.  Ct.  41,  101  N.  Y.  469,  5  N.  E.  331..136,  146 
Matheny  v.  Mason,  73  Mo.  677 ^ 167 


CASES    CITED.  297 

Page 

Matteson  y.  Holt,  45  Vt.  336 243 

Matthews  v.  Baxter,  L.  R.  8  Bxch.  182 12,  18 

V.  Bliss,   22  Pick.  48,  52 113 

Matthiessen  &  W.  Refining  Co.  v.  McMahon's  Adm'r,  38  N.  J.  Law,  536, 

538,  544 12,  13,  60,  63,  66 

Mattlce  V.  Allen,  42  N.  Y.  493 66 

Maxfleld  y.  Jones,  76  Me.  135,  137 166 

Maxton  y.  Gheen,  75  Pa.  St  166 144 

Maxwell  y.  Brown,  39  Me.  98,  103 52,  61 

y.  Lee,  34  Minn.  511,  27  N.  W.  196 197,  247 

May  y.  Ward,  134  Mass.  127 40,  71 

Mayer  y.  Adrian,  77  N.  C.  83 69 

y.  Child,  47  Cal.  142 45 

Maynard  v.  Maynard,  49  Vt  297 112 

y.  Tabor,  53  Me.  511 27 

Mead  y.  Parker,  115  Mass.  413 72 

Meade  y.  Smith,  16  Conn,  346 130 

Means  y.  Williamson,  37  Me.  556 62 

Mechanics'  &  Traders'  Bank  y.  Farmers'  &  Mechanics'  Nat.  Bank,  60  N. 

Y.  40 21 

Medbury  y.  Watson,  6  Mete.  (Mass.)  249,  259 114 

Medina  y.  Stoughton,  1  Salk.  210,  LdL  Raym.  593 - 166 

Meehan  y.  Sharp,  151  Mass.  564,  24  N.  E.  907 - 44,  59 

Meincke  y.  Falk,  55  Wis.  427,  13  N.  W.  545 - 42 

Melchoir  y.  McCarty,  31  Wis.  252 142,  143 

Menta  y.  Newwitter,  122  N.  Y.  491,  25  N.  E.  1044 69 

Merchant  Banking  Co.  of  London  v.  Phoenix  Bessemer  Steel  Co.,  5  Ch. 

Div.  205 212,  213 

Merchants'  Bank  y,  Hlbbard,  48  Mich.  118,  11  N.  W.  834 211 

Merchants'  Exch.  Bank  y.  McGraw,  8  C.  C.  A.  420,  59  Fed.  972 83,  107 

Merchants'  Nat  Bank  v.  Bangs,  102  Mass.  291,  295 99,  100,  106 

Meredith  v.  Meigh,  2  El.  &  Bl.  364,  370,  22  Law  J.  Q.  B.  401 56,  57 

Merriam  y.  Cunningham,  11  Gush.  40,  44 10,  11 

y.  Field,  24  Wis.  640,  39  Wis.  578 162,  173,  176 

y.  Pine  City  Lumber  Co.,  23  Minn.  314 115 

y.  Wolcott,  3  Allen,   258 110 

Merrick  y.  Wiltse,  37  Minn.  41,  33  N.  W.  3 243.  249 

Merrick's  Estate,  5  Watts  &  S.  17 32 

Merrill  y.  Meachum,  5  Day,  341 128 

y.  Nightingale,  39  Wis.  247 -172 

Merriman  v.  Chapman,  32  Conn.  146 ,  174 

Merritt  y.  Clason,  12  Johns.  102 74,  75,  79 

Merry  y.  Green,  7  Mees.  «&  W.  623 82 


298  CASES    CITED. 

Pag» 
Mersey  Steel  &  Iron  Co.  v.  Naylor,  9  App.  Cas.  434,  444,  9  Q.  B.  Dlv. 

648    155,   193,  194 

Messer  t.  Woodman,  22  N.  H.  172 95 

Messmore  t.  New  York  Shot  &  Lead  Co.,  40  N.  Y.  422 240 

Mews  V.  Carr,  1  Hurl.  &  N.  486,  26  Law  J.  Exch.  3'J 78 

Mej-er  v.  Amidon,  45  N.  Y.  169 116 

V.  Everth,  4  Camp.  22 174 

V.  Thompson,  16  Or.  194,  18  Pac.  16 59 

Meyersteln  v.  Barber,  L.  R.  2  C.  P.  38,  51,  661,  L.  R.  4  H.  L.  317 130,  224 

Michael  v.  Bacon,  49  Mo.  474 135 

Michigan  C.  R.  Co.  v.  Phillips,  60  111.  190 84 

Michigan  State  Bank  v.  Gardner,  15  Gray,  362 21 

Middlebury  College  v.  Chandler,  16  Vt.  686 9 

Middlesex  Co.  v.  Osgood,  4  Gray,  447 183 

Mighell  V.  Dougherty,  86  Iowa,  480,  53  N.  W.  402 _     42 

Mihills  Manuf  g  Co.  v.  Day,  50  Iowa,  250 239 

Miles,  Ex  parte,  15  Q.  B.  Div.  39,  54  Law  J.  Q.  B.  567 222 

V.  Gorton,  2  Cromp.  &  M.  504 206,  213,  216 

V.  Miller,   12   Bush,    184 236 

Milgate  v.  Kebble,  3  Man.  &  G.  100 227 

Millard  v.  Webster,  54  Conn.  415,  8  Atl.  470 216,  221 

Mill-Dam  Foundery  v.  Hovey,  21  Pick.  417 152 

Miller  V.  Ammon,  145  U.  S.  421,  426,  12  Sup.  Ct.  884 140 

V.  Barber,  66  N.  Y.  558,  564 121 

V.  Post,  1  Allen,  434 140,  141 

V.  Race,  1  Burrows,  452 17 

V.  Smith,  26  Minn.  248,  2  N.  W.  942 7 

V.  Stevens,   100   Mass.   518 47 

V.  Tiffany,  1  Wall.  298 168 

alllliken  v.  Warren,  57  Me.  46 208,  212 

Mills  V.  Hunt,  17  Wend.  333,  20  Wend.  431 50 

V.  Williams,  16  S.  C.  593 142 

Mllnes  V.  Gery,  14  Ves.  400 33 

Milwaukee  Boiler  Co.  v.  Duncan,  87  Wis.  120,  58  N.  W.  232 ►.«..  172 

Milwaukee  &  St.  P.  R.  Co.  v.  Milwaukee  &  M.  R.  Co.,  20  Wis.  174 139 

Miner  v.  Bradley,  22  Pick.  457,  458 109,  111 

Ming  V.  Woolfolk,  116  U.  S.  5'J9,  6  Sup.  Ct.  489 118 

Minneapolis  &  St  L.  Ry.  Co.  v.  Columbus  Rolling  Mill  Co.,  119  U.  S.  149, 

7  Sup.  Ct.  168 27 

MInock  V.  Shortrldge,  21  Mich.  304 8 

Mirabita  v.  Imperial  Ottoman  Bank,  3  Exch.  Div.  164,  172 106,  107 

Mires  v.  Solebay,  2  Mod.  243 89 

Mississippi  &  T.  R.  Go.  v.  Green,  8  Heisk.  588 161 


CASES    CITED.  299 

Page 

Mitchell  r.  Gile,  12  N.  H.  390 4 

V.  Smith,  1  Bin.  110 140 

V.  Winslow,  2  Story,  630,  Fed.  Gas.  No.  9,673 26 

Mixer  V.  Howarth,  21  Pick.  205 ». ..     40 

Moakes  v.  Nicholson,  19  C.  B.  (N.  S.)  290,  34  Law  J.  C.  P.  273 106 

Mockbee  v.  Gardner,  2  Har.  &  G.  176 167 

Mody  V.  Gregson,  L.  R.  4  Exch.  49,  53 156,  176,  177 

Mohney  v.  Evans,  51  Pa.  St.  80 10,  11 

Mohr  V.  Boston  &  A.  R.  R.,  106  Mass.  72 220 

V.  MIesen,  47  Minn.  228,  49  N.  W.  862 145 

Moley  V.  Brine,  120  Mass.  324 8 

Mollne-MIlburn  Co.  v.  Franklin,  37  Minn.  137,  33  N.  W.  323 117 

Moller  V.  Tuska,  87  N.  Y.  166 120 

Molton  V.  Camroux,  2  Exch.  487,  4  Exch.  17,  Ewell,  Lead.  Gas.  614 12-14 

Mondel  v.  Steel,  8  Mees.  &  W.  858 245 

Monk  V.  Whittenbury,  2  Barn.  &  Adol.  484 20 

Monroe  v.  Hoff ,  5  Denio,  360 202 

Monte  Allegre,  The,  9  Wheat.  616 167 

Montefiori  v.  Montefiori,  1  Wm.  Bl.  363 146 

Moody  V.  Blake,  117  Mass.  23 123 

y.  Brown,   34   Me.    107 103 

V.  Wright,  13  Mete.  (Mass.)  17,  30 24,  26 

Moore  v.  Byrum,  10  S.  G.  452 25 

V.  Gampbell,  10  Exch.  323,  23  Law  J.  Exch.  310 ^  . .     73 

V.   Hamilton,  44  N.  Y.  661,  666 219 

V.  Hershey,  90  Pa.  St.  196 12 

V.  Kendall,  2  Pin.  99 146 

V.  Love,    57    Miss.    765 53 

V.  McKinlay,   5  Gal.  471 168 

T.  Mountcastle,  61  Mo.  424 68 

Morehouse  v.  Gomstock,  42  Wis.  626 162,  245 

Morey  v.  Medbury,  10  Hun,  540 84,  85 

Morgan  v.  Gath,  3  Hurl.  &  G.  748,  34  Law  J.  Exch.  165 190 

Morlson  v.  Gray,  2  Bing.  260 215 

Morley  v.  Attenborough,  3  Exch.  500,  511 165,  166,  168 

Morrill  v.  Noyes,  56  Me.  458,  466 26 

Morris  v.  Thompson,  85  111.  16 112,  166 

Morrison  v.  Dlngley,  63  Me.  553 95 

V.  Koch,  32  Wis.  254,  261 113 

Morritt,  In  re,  18  Q.  B.  DIv.  232 3 

Morrow  v.  Reed,  30  Wis.  81 87,  88 

Morse  v.  Brackett,  98  Mass.  205,  104  Mass.  494 Ill 

V.  Ely,  154  Mass.  458,  28  N.  E.  577 7 

V.  Moore,  83  Me.  473,  479,  22  Atl.  362 ^,^, . .157,  244,  245,  247 


SOO  CASES    CITED. 

Page 

Morse  v.  Ryan,  26  Wis.  356 187 

V.   Shaw,  124  Mass.  59 114 

V.  Sherman,  106  Mass.  430 84,  234 

Morss  V.  Stone,  5  Barb.  516 4 

Mortimer  v.  McCallan,  6  Mees.  &  W.  58 26 

Morton  v.  Dean,  13  Mete.  (Mass.)  385 43,  74,  77 

V.  Lamb,  7  Term  R.  125 178,  179 

T.  Tibbett,  15  Q.  B.  428,  19  Law  J.  Q.  B.  882 65,  67,59 

Moses  V.  Mead,  1  Denlo,  878,  5  Denlo,  617 174 

V.  Rasin,  14  Fed.  772,  774 216,  236 

Moss  V.  Sweet,  16  Q.  B.  493,  20  Law  J.  Q.  B.  167 92,  93 

Mottram  v.  Heyer,  6  Denio,  629 226 

Mount  Hope  Iron  Co.  v.  Buffinton,  103  Mass.  62 87 

Mowbray  v.  Cady,  40  Iowa,  604 ^..     92 

Mowry  v.  Kirk,  19  Ohio  St  375 186 

Mucklow  V.  Mangles,  1  Taunt.  318 103 

Muller  V.  Eno,  14  N.  Y.  597. 243 

V.  Pondlr,  55   N.   Y.   325 215 

Munson  v,  Washband,  31  Conn.  303 9 

Murch  V.  Wright,  46  111.  487 90 

Murchle  v.  Cornell,  155  Mass.  60,  29  N.  E.  207 173 

Murphy  v.  Boese,  L.  R.  10  Exch.  126 , . .     77 

Muskegon  Curtain-Roll  Co.  v.  Keystone  Manuf'g  Co.,  135  Pa.  St.  132,  19 

Atl.   1008 233 

Mutual  Life  Ins.  Co.  v.  Hunt,  14  Hun,  169,  79  N.  Y.  541 13 

Myer  v.  Wheeler,  65  Iowa,  390,  21  N.  W.  692 194 

Myers  v.  Knabe,  51  Kan,  720,  33  Pae.  602 13 

V.  Melnrath,  101  Mass.  366,  369 146,  147 

T.  Smith,  48  Barb.  614..  «......« ^ 27 

N 

Nash  V.  Brewster,  39  Minn.  530,  41  N.  W.  105 96 

V.  Lull,  102  Mass.  60 110 

V.  Towne,  5  Wall.  689 70,  235 

National  Bank  v.  Dayton,  102  U,  S.  59 99 

V.  Goodyear  (Ga.)  16  S.  E.  962 29 

National  Bank  of  Commerce  v.  Chicago,  B.  &  N.  R.  Co.,  44  Minn.  224,  46 

N.   W.  342,  560 90 

V.  Merchants'  Nat.  Bank  of  Memphis,  91  U.  S.  92 107 

National  Car  &  Locomotive  Builder  v.  Cyclone  Steam-Plow  Co.  (Minn.) 

51   N.   W.   657 29 

Neal  V.  Williams,  18  Me.  391 22,  128 

Neblett  v.  Macfarland,  92  U.  S.  101,  104 122 


GASES  CITED.  801 

Pac* 

Negley  t.  Jeffers,  28  Ohio  St.  90 ^.,^^^^  7a 

Neldefer  v.  Chastain,  71  Ind.  363 „ . .  „  .^  ..  ^  110 

Nellls  V.  Clark,  20  Wend.  24,  4  Hill,  424 «  ►.  128 

Nelson  v.  Buncombe,  9  Beav.  211 14 

Nesbit  V.  Burry,  25  Pa.  St.  208 88 

Nettleton  v.  Beach,  107  Mass.  499 116 

V.  Sikes,   8  Mete.   (Mass.)  34 4G 

New  V.  Swain,  1  Dan,  &  L.  193 208 

Newberry  v.  Wall,  84  N.  Y.  576 79 

Newcomb  v.  Boston  &  L.  R.  Co.,  115  Mass.  230 106 

V.  Brackett,    16   Mass.   161 160 

V.  Earner,  2  Johns.  421,  note  a 48 

Newell  V.  Radford,  L.  R.  3  C.  P.  52,  37  Law  J.  C.  P.  1 69 

V.  Randall,  32  Minn.  171,  19  N.  W.  972 113 

New  England  Iron  Co.  v.  Gilbert  Elevated  R.  Co.,  91  N.  Y.  153,  168 234 

Newhall  v.  Central  P.  R.  Co.,  51  Cal.  845 224 

V.  Kingsbury,  131  Mass.  445 90 

T.  Langdon,  39  Ohio  St.  87 95 

V.  Vargas,  13  Me.  93,  15  Me.  314 215,  219,  225,  226 

New  Hampshire  Mut.  Fire  Ins.  Co.  v.  Noyes,  32  N.  H.  345 8 

Newman  v.  Morris,  4  Har.  &  McH.  421 37 

Newson  v.  Thornton,  6  East,  17 215 

Newton  v.  Bronson,   13  N.   Y.  587 73 

New  York  Tartar  Co.  v.  French,  154  Pa.  St.  273,  26  Atl.  425 19G 

Nibert  v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252 142 

NIchol  V.  Godts,  10  Exch,  191,  23  Law  J.  Exch.  314 156 

Nichols  V.  Ashton,  155  Mass.  205,  29  N.  E.  519 90 

V.  Johnson,  10  Conn.  192 69 

Nicholson  V.  Bower,  1  El.  &  El.  172 55 

V.  Bradfield  Union,  L.  R.  1  Q.  B.  620,  35  Law  J.  Q.  B.  176 189 

V.  Taylor,  31  Pa.  St.  128 88 

V.  Wilborn,  13  Ga.  467,  469,  475 10,  11 

Nickerson  v.  Darrow,  5  Allen,  419 21 

NIell  V.  Morley,  9  Ves.  478,  Ewell,  Lead.  Cas.  628 13 

NIemeyer  v.  Wright,  75  Va.  239 140 

Noakes  v.  Morey,  30  Ind.  103 65 

Noble  V.  Ward,  L.  R.  1  Exch.  117,  35  Law  J.  Exch.  81 73 

Noel  V.  Murray,  13  N.  Y.  167 202 

Norfolk  S.  R.  Co.  v.  Barnes,  104  N.  C.  25,  10  S.  E.  83 101 

Norman  v.  Phillips,  14  Mees.  &  W.  276,  277 57,  59 

Norrington  v.  Wright,  115  U-  S.  188,  203,  204,  6  Sup.  Ct.  12 

151,  155,  157,  188,  191,  193,  194 

Norrls  v.  Blair,  39  Ind.  90 71 

T.  Harris,  15  Cal.  226 Ill 


802  CASES    CITED, 

North  y.  Forest,  15  Conn.  400 «  ».  44 

V,  Mendel,  73  Ga.   400 ^  « . .  ^  74 

North  Pacific  L.  &  M.  Co.  v.  Kerron,  6  Wash.  214,  31  Pac.  595 86 

Northrup  v.  Cook,  39  Mo.  208 56 

V.  Foot,   14   Wend.   249 142,  146 

Northwestern  Mut.  Fire  Ins.  Co.  v.  Blankenshlp,  94  Ind.  535 13 

Norton  V.  Dreyfuss,  106  N.  T.  90,  12  N.  B.  428 248 

V.  Gale,  95  111.  533 71 

V.  Tuttle,  60  111.  130 139 

V.  Woodrufif,  2  N.  Y.  153 3 

Norwegian  Plow  Co.  v.  Hanthorn,  71  Wis.  529,  37  N.  W.  825 68 

Nutter  V.  Wheeler,  2  Low.  346,  Fed.  Cas.  No.  10,384 29 

Nutting  V.  Nutting,  63  N.  H.  221 90 

Nye  V.  Iowa  City  Alcohol  Works,  51  Iowa,  129,  50  N.  W.  988 245 


O 

O'Brien  v.  Norrls,  16  Md.  122 216,  217 

O'Bryan  v.  Fitzpatrick,  48  Ark.  487,  3  S.  W.  527 142 

Odell  V.  Boston  &  M.  R.  R.,  109  Mass.  50 88,  100 

Odessa  Tramways  Co.  v.  Mendel,  8  Ch.  Div.  235 148 

O'Donell  v.  Sweeney,  5  Ala.  467 146 

O'Donnell  v.  Leeman,  43  Me.  158 71,  74 

Ogg  V.  Shuter,  1  C.  P.  Div.  47,  reversing  L.  R.  10  C.  P.  159 101,  106,  107 

Ogle  V.  Earl  Vane,  L,  R.  3  Q.  B.  272 237 

Old  Colony  R.  R.  v.  Evans,  6  Gray,  25,  31 75 

Oliver  v.  Hunting,  44  Ch.  Div.  205 74 

Ollivant  v.  Bayley,  5  Q.  B.  288 30,  172 

Olmstead  v.  Niles,  7  N.  H.  522 46 

Olson  V.  Sharpless,  53  Minn.  91,  55  N.  W.  125 73,  236 

Olyphant  v.  Baker,  5  Denio,  379-383 84,  88 

Omaha  Coal,  Coke  &  Lime  Co.  v.  Fay,  37  Neb.  68,  55  N.  W.  211 172 

O'Neil  V,  Grain,  67  Mo.  250 71 

V.  Garrett,  6  Iowa,  479 222 

V.  New  York  &  Silver  Peak  Min.  Co.,  3  Nev.  141 42 

V.  Vermont,  144  U.  S.  323,  12  Sup.  Ct  693 101 

Oppenheim  v.  Russell,  3  Bos.  &  P.  42 217 

Orcutt  V.  Nelson,  1  Gray,  536,  541 130,  149 

Oriental  Bank  v.  Haskins,  3  Mete.  (Mass.)  332 128 

Orman  v.  Hager,  3  N.  M.  331,  9  Pac.  363 42 

Ormrod  v.  Huth,  14  Mees.  &  W.  651 115 

Osborn  v.  Nicholson,  13  Wall.  654 164 

Osborne  v.  Moss,  7  Johns.  161 128 

Osgood  V.  Lewis,  2  Har.  &  G.  495 150,   163 


CASES   CITED.  303 

Osterhout  v.  Roberts,  8  Cow.  43 ^.^^^,.     32 

Oswego  Starch  Factory  v.  Lendrum,  57  Iowa,  573,  10  N.  W.  900 115,  123 

Ottawa  Bottle  &  FlInt-GIass  Co.  v.  Gunther,  31  Fed.  209 ► 172 

Owens  V.  Lewis,  46  Ind.  48S,  489 46 

V.  Weedman,  82  111.  409 206,  208 

Oxendale  v.  Wetherell,  9  Barn.  &  C.  386,  4  Man.  &  R.  429 31,  190 


P 

Pacific  Iron  Works  r.  Long  Island  R.  Co..  62  N.  Y.  272 ^^  100 

Packard  v.  Dunsmore,   11  Cush.  282 131,  181 

V.  Richardson,  17  Mass.   122 ►.     70 

Paddock  v.  Strobrldge,  29  VL  471 .^  112 

Paddoa  v.  Taylor,  44  N.  Y.  371 122 

Page  Y.  Carpenter,  10  N.  H.  77 96 

V.  Eduljee,  L.  R.  IP.  C.  145 227 

V.  Morgan,  15  Q.  B.  DIv.  228 «     58 

V.  Morse,  128  Mass.  99 «       8 

V.  Parker,  43  N.  H.  363,  368 114 

Paine  v.  Cave,  3  Term  R.  148 27 

V.  Sherwood,  19  Minn.  315  (Gil.  270),  21  Minn.  225 237,  239 

Palmer  v.  Hand,  13  Johns.  434,  435 84,  212 

V.  Stephens,   1    Denio,   471 75 

Pam  y.  Vilmar,  54  How.  Prac.  235 4 

Pangborn  v.  Westlake,  36  Iowa,  546 ,  140 

Pardee  v.  Kanady,  100  N.  Y.  121,  126,  2  N.  E.  885 234 

Park  V.  Darling,  4  Cush.  197 19 

Parker  v.  Baxter,  86  N.  Y.  586 89 

V.  Byrnes,  1  Lowell,  539,  Fed.  Cas.  No.  10,728 115,  208,  211 

V.  Palmer,  4  Barn.  &  Aid.  387,  391 174,  199,  200 

V.  Pettit,  43  N.  J.  Law,  512 160 

V.  Russell,   133  Mass.   74 159 

T.  Schenck,  28  Barb.  38 ,41 

V.  Staniland,  11   East,   362 ^  ».     45 

V.  Wallis,  5  El.  &  Bl.  21 56 

Parkinson  v.  Lee,  2  East,  314 170,  174 

Parks  V.   Hall,   2  Pick.   206,   212 208,213 

V.  Morris  Axe  &  Tool  Co.,  54  N.  Y.  586 248,  249 

Parmlee  V.  Adolph,  28  Ohio  St.  10 ,.115,  116,  124 

Parshall  v.  Eggart,  52  Barb.  367 3 

Parson  v.  Sexton,  4  C.  B.  899 245 

Parsons  v.  Loucks,  48  N.  Y.  17 41 

V.  Sutton,   66  N.    Y.  92 237,  239 


304 


CASES    CITED. 


Parsons  t.  Webb,  8  GreenL  (Me.)  38 IT 

rarton  v.  Crofts,  16  C.  B.  (N.  S.)  11 80 

Pasley  v.  Freeman,  3  Term  R.  Bl,  57 118,  168,  166- 

Tasseuger  v.  Thorburn,  34  N.  Y.  634 24t) 

Pateshall  v.  Tranter,  3  Add.  &  E.  103 244 

Pattee  v.  Greely,  13  Mete.  (Mass.)  284 142 

Patten  v.  Thompson,  5  Maule  &  S.  350 21G 

Patten's  Appeal,  45  Pa.  St  151 „ 22& 

Pattison  v.  Culton,  33  Ind.  240 224 

Pattlson's  Appeal,  61  Pa.  St.  294 _     47 

Paul  V.  City  of  Kenosha,  22  Wis.  257 HO' 

V.  Dod,  2  C.  B.  800 234 

V.  Hadley,  23  Barb.  521 112 

V.  Reed,  52  N.   H.  136 84,  85,  80 

Pawleski  v.  Hargreaves,  47  N.  J.  Law,  334 42 

Peabody  v.  Maguire,  79  Me.  572,  575,  585,  12  Atl.  630 85,  89 

V.  Speyers,  56  N.  Y.  230 44,  45,  68 

Peace  River  Phosphate  Co.  v.  Grafflin,  58  Fed.  550 194,  239 

Pearce  v.  Brooks,  L.  R.  1  Exch.  213 135 

Pearson  v.  Dawson,  EL,  Bl.  &  El.  448,  27  Law  J.  Q.  B.  248 212 

Pease  v.  Gloahec,  L.  R.  1  P.  C.  219,  220,  229,  3  Moore,  P.  C.  (N.  S.)  558 . . 

22,  122 

Peek  V.  Gurney,  L.  R.  6  H.  L.  377,  403,  409 113,  116,  117 

Peer  v.  Humphrey,  2  Adol.  &  E.  495 ^...^...^ 17 

Peltier  v.    Collins,  3  Wend.   459 72,  79 

Pence  v.  Langdon,  99  U.  S.  478,  578,  582 120,  124 

Penhallow  v.  Dwlght,  7  Mass.  34 ^.. 48 

Penn  v.  Bornman,  102  111.  523 ^ 140,  146 

V.  Smith,  98  Ala.  650,   12  South.  818 228 

Pennlman  v.  Hartshorn,  13  Mass.  87 76 

Pennington  v,  Jones,  57  Iowa,  37,  10  N.  W.  274 ^     25 

Pennock  v.  Coe,  23  How.  117 26 

Pennsylvania  Co.  v.  Holderman,  69  Ind.  18 195 

Pennsylvania  R.  Co.  v.  American  Oil  Works,  126  Pa.  St.  485,  17  Atl.  671 

217,  226 

Pennypacker  t,  Umberger,  22  Pa.  St.  492 201 

People  V.  Board  of  Sup'rs,  27  Cal.  655 115 

People's  Bank  v.  Bogart,  81  N.  Y.  101 112 

Perkins  v.  Whelan,  116  Mass.  542 167 

Perley  v.  Balch,  23  Pick.  283 120,  244 

Perlman  v.  Sartorius,  162  Pa.  St.  320,  29  Atl.  852 184 

Perrin  v.  Wilson,  10  Mo.  451 ^ 10 

Perry  v.  Mt.  Hope  Iron  Co.,  16  R.  L.  318,  15  Atl.  87 188 

Persse,  In  re,  3  Malloy,  94 ^,,^ 14 


CASES   CITED.  305 

Pag» 

Peters  v.  Cooper,  95  Mich.  191,  64  N.  W.  694..«..«..^ 232: 

V.  Fleming,  6  Mees.  &  W.  42,  46 ►. .».  H 

V.  Grim,  149  Pa.  St.  163,  24  Atl.  192 147 

Peters  Box  &  Lumber  Co.  v.  Lesh,  119  Ind.  98,  20  N.  E.  291 123 

Pettigrew  v.  Chellis,  41  N.  H.  95 115- 

Pettitt  V.  Mitchell,  4  Man.  &  G.  819 197 

Phelps  V.  Comber,  29  Ch.  Div.  813 225 

V.  Hubbard,    51    Vt.    489 179,  183,  228 

V.  Stillings,  60  N.  H.  505 Tl 

V.  Worcester,  11  N.  H.  51 9 

Phlfer  V.  Erwin,  100  N.  C.  59,  6  S.  E.  672 33 

Philadelphia  Whiting  Co.  v.  Detroit  White-Lead  Works,  58  Mich.  29,  24 

N.  W.  881  19» 

Philadelphia,  W.  &  B.  R.  Co.  v.  Woelpper,  64  Pa.  St.  36G 26; 

Philbrook  v.  Eaton,  134  Mass.  398 241 

Phillips  V.  Bistolli,  2  Barn.  &  C.  511 30,  59,  61 

V.  Moor,  71  Me.  78 84 

V.  Ocmulgee  Mills,  55  Ga.  633 56,  69,  96 

Phlllpotts  V.  Evans,  5  Mees.  &  W.  475 232 

Philpot  V.  Sandwich  Manuf  g  Co.,  18  Neb.  54,  24  N.  W.  428 & 

Phippen  v.  Hyland,  19  U.  C.  C.  P.  416 74J 

Phipps  V.  Buckman,  30  Pa.  St.  401 IIB 

Picard  v.  McCormick,  11  Mich.  69 4 

Pickard  v.  Sears,  0  Adol.  &  E.  469 22 

Pickering  v.  Bardwell,  21  Wis.  563 228 

V.  Cease,  79   111.   328 144 

V.  Ilfracombe  Ry.  Co.,  L.  R.  3  C.  P.  250 14S 

Pickett  V.  Bullock,  52  N.  H.  354 20T 

V.  Cloud,   1   Bailey,  362 84 

Pierce  v.  Cooley,  56  Mich.  552,  23  N.  W.  310 92 

V.  Corf,  L.  R.  9  Q.  B.  210,  215 74,  78 

V.  Schenck,  3  Hill,  28 3 

V.  Wilson,   34   Ala.    596 121 

Plerson  v.  Crooks,  115  N.  Y.  539,  22  N.  E.  349 197,  24» 

Pike  V.  Balch,  38  Me.  302 43 

V.  King,   16  Iowa,   49 146 

Pllgreen  v.  State,  71  Ala.  368 100,  101 

Pinney  v.  First  Division  St.  P.  &  P.  R.  Co.,  19  Minn.  251  (Gil.  211) 185' 

Pitkin  V.  Noyes,  48  N.  H.  294 42: 

Pitney  v.  Glen's  Falls  Ins.  Co.,  65  N.  Y.  6 66 

Pitts  V.  Beckett,  13  Mees.  &  W.  743 71,  72. 

Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Heck,  50  Ind.  303 232. 

Pitts'  Sons  Manuf'g  Co.  v.  Poor,  7  111.  App.  24 92 

Pixley  V.  Boyuton,  79  111.  351 14& 

BALES— 20 


306  GASES   CITED. 

Pas* 

Plaisted  V.  Palmer,  63  Me.  576 143,  146 

Piatt  V.  Brand,  26  Mich.  173 159 

Pleasants  v.  Pendleton,  6  lland.  (Va.)  473 95,  96 

Plunkett  V.  PUmkett,  114  Ind.  484,  16  N.  E.  612,  and  17  N.  E.  562 128 

Poland  V.  Brownell,  131  Mass.  138 113 

Polhemus  v.  Heiman,  45  Cal.  573 190,  242,  244,  245 

Polhill  V.  Walter,  3  Barn.  &  Adol.  114 116 

Pollen  V.  Le  Roy,  30  N.  Y.  549 228,  229 

Poor  V.  Woodman,  25  Vt.  235 123 

Pope  V.  Allis,  115  U.  S.  363,  371,  6  Sup.  Ct.  69 157,  242 

V.  Porter,  102  N.  Y.  360,  7  N.  E.  304 155,  193,  194 

V.  Terre  Haute  Car  &  Manuf'g  Co.,  107  N.  Y.  61,  13  N.  E.  592 185 

Poplett  V.  Stockdale,  Ryan  &  M.  337 134 

Porter  v.  Pool,  62  Ga.  238 162,  248 

V.  Rose,  12  Johns.  209 179 

Posey  V.  Scales,  55  Ind.  282 179,  186 

Potsdamer  v.  Kruse  (Minn.)  58  N.  W.  983 Ill 

Potter  V.  Taggart,  54  Wis.  395,  400,  11  N.  W.  678 121 

Potts  V.  Bell,  8  Term  R.  548 136 

V.  New  York  &  N.  E.  R.  Co.,  131  Mass.  455 213,  217 

V.  Whitehead,  23  N.  J.  Eq.  512 27 

Poulton  V.  Lattimore,  9  Barn,  &  C.  259,  265 243-245 

Powder  Co.  v.  Burkhardt,  97  U.  S.  110 3 

Powell  V.  Bradlee,  9  Gill  &  J.  220 115 

V.  McAshan,  28  Mo.  70 48 

Power  V.  Barham,  4  Adol.  &  E.  473 163,  164 

Powers  V.  Benedict,  88  N.  Y.  605 121 

V.  Bellinger,  54  Wis.  389,  11  N.  W.  597 84 

Prairie  Farmer  Co.  v.  Taylor,  69  111.  440 92 

iPratt  V.  Miller,  109  Mo.  78,  18  S.  W.  965 42 

V.  Parkman,  24  Pick.  42 131 

V.  Peck,  70  Wis.  620,  36  N.  W.  410 103,  200 

V.  Philbrook,  41  Me.  132 121 

Pray,  The  E.  H.,  27  Fed.  474 226 

Pray  v.  Burbank,   10  N.   H.  377 140,  141 

V.  Mitchell,  60  Me.  430,  435 44 

Prescott  V.  Locke,  51  N,  H.  94 42 

Preston  v.  Crof ut,  1  Conn.  527,  note , 128 

V.  Whitney,  23  Mich.  260 «  «     91 

Price  V.  Furman,  27  Vt.  268 7 

V.  Sanders,  60  Ind.  311 ►.     10 

Prichett  v.  Jones,  4  Rawle,  260 87 

Prideaux  v.  Bunnett,  1  C.  B.  (N.  S.)  613 30 

Prime  v.  Cobb,  63  Me.  200 17 


CASES   CITED.  807 

Page 

Proctor  V.  Jones,  2  Car.  &  P.  532 55 

V.  Sears,  4  Allen,  95 8 

Prosser  v.  Edmonds,  1  Younge  &  C.  Exch.  499 139 

Puckett  V.   Read,  31  Ark.  131 182 

Purner  v.  Plercy,  40  Md.  212,  223 47,  48 

Putnam  v.  Glldden,  159  Mass.  47,  84  N.  B.  81 206,  229 

Putney  v.  Day,  6  N.  H.  430 ^ 46 

Pyne  <r.  Wood,  145  Mass.  558,  14  N.  B.  775 9 

Q 

QuintArd  v.  Bacon,  99  Mass.  185 ....-..« «..    56 

B 

Raffles  V.  Wlchelhaus,  2  Hurl.  &  C.  906,  33  Law  J.  Bxch.  160 29 

Rahter  v.  First  Nat.  Bank,  92  Pa.  St.  393 141 

Rail  V.  Little  Palls  Lumber  Co.,  47  Minn.  422,  50  N.  W.  471 84,  87 

Rainsf ord  v.  Fenwick,  Cart.  215 10 

Rainwater  v.  Durham,  2  Nott  &  McC.  524 10 

Rand  V.  Mather,  11  Gush.  1,  7 148 

Randall  v.  Newson,  2  Q.  B.  Div.  102.  .    172,  174 

V.  Raper,  El.,  Bl.  &  El.  84,  27  Law  J.  Q.  B.  266 249 

T.  Rhodes,  1  Curt.  90,  Fed.  Gas.  No.  11,556 162 

V.  Thornton,   43  Me.  226 163 

Randle  v.  Stone  &  Go.,  77  Ga.  501 91 

Randon  y.  Toby,  11  How.  493,  520 146 

Ranney  v.  Higby,  4  Wis.  174 100 

Raphael  v.  Burt,  1  Gab.  &  El.  325 166 

Rappleya  v.  Adee,  65  Barb.  589, 1  Thomp.  &  C.  127 56,  63 

Rawlings  v.  Hunt,  90  N.  G.  270 , . ..     25 

Rawlins  v.  Wickham,  3  De  Gex  &  J.  304,  322 119 

Rawson  v.  Harger,  48  Iowa,  269 115 

V.  Johnson,  1  East,  203 179 

Ray  V.  Light,  34  Ark.  421 82 

V.  Thompson,  12  Gush.  281 93 

Read  V.  Hutchinson,  3  Gamp.  352 4 

Redgrave  v.  Hurd,  20  Gh.  Div.  1 118 

Redmond  v.  Smock,  28  Ind.  365 229 

Reed  v.  Jewett,  5  Greenl.  (Me.)  96 129 

V.  Randall,  29  N.  Y.  358 248 

V.  Reed,  70  Me.  504 130 

Reeder  v.  Machen,  57  Md.  56 95,  98 

Reese  River  Silver  Min.  Co.  v.  Smith,  L.  R.  4  H.  L.  M,  73.^  ►^...  ,^  .116,  121 


308  OASES   CITED. 

Page 

Regglo  V.  Braggfottl,  7  Cush.  166 248 

Reherd'8  Adm'r  v,  Clem,  86  Va.  374,  10  S.  B.  504 4 

Reid  V.  Kentworthy,  25  Kan.  701 71 

Reniick  v.  Sandford,  118  Mass.  102,  120  Masa  309,  316 59,  72,  79 

Rentch  v.  Long,  27  Aid.  188 42 

Reuss  V.  Pieksley,  L.  R.  1  Exch.  342,  35  Law  J.  Exch.  218 70,  75 

Renter  v.  Sala,  4  C.  P.  Div.  239,  246,  249 155 

Reybold  v.  Voorhees,  30  Pa.  St.  116 194 

Reynolds  v.  Boston  &  M.  R.  R.,  43  N.  H.  580 215-217,  225 

V.  Stevenson,  4  Ind.  619 142 

V.  Palmer,  21  Fed.  433 247 

Rhoades  v.  Castner,  12  Allen,  130 74 

Rice  V.  Churchill,  2  Denlo,  145 183 

V.  Codman,  1  Allen,  377,  380 163 

V.  Dwight  Manuf  g  Co.,  2  Cush.  80,  86 23 

V.  Forsyth,  41   Md.  389 166,  170 

V.  Stone,   1  Allen,  566 24 

Richards  v.  Grandy,  49  Vt  22 244 

V.  Shaw,  67   111.  222 31,  190 

Richardson  v.  Chynoweth,  26  Wis.  650 237 

T.  Cooper,  25   Me.   450 73 

V.  Dunn,  2  Q.  B.  218 «     81 

V.  Goddard,  23  How.  29,  42 142 

V.  Noble,  77  Me.  390 114 

V.  Rowland,  40  Conn.  565 139 

V.  Strong,  13  Ired.  106 14 

Richmond  v.  Moore,  107  111.  429 142 

Rickard  v.  Moore,  38  Law  T.  (N.  S.)  841 B8 

Ricky  V.  Tenbroeck,  63  Mo.  563 53,  228 

Riddle  v.  Varnum,  20  Pick.  280 88 

Rider  v.  Kelley,  32  Vt.  268 ^  ...  103 

Ridgway  v.  Ingram,  50  Ind.  145 74 

V.  Wharton,  6  H.  L.  Cas.  238 «  «  ►«    74 

Riford  V.   Montgomery,  7   Vt.   418 17 

RIggan  V.  Green,  80  N.  C.  236 13 

Riggs  V.  Magruder,  2  Cranch,  C.  C.  143,  Fed.  Cas.  No.  11,828 44 

Rightor  V.  Roller,  31  Ark.  171 ^     115 

Riley  v.  Boston  Water-Power  Co.,  11  Cush.  11 17 

V.  Farnsworth,  116  Mass.  223 71 

V.  Mallory,  33  Conn.  201 «...       7 

V.  Wheeler,  42  Vt  528,  532 84,  85 

Rinehart  v.  Olwine,  5  Watts  &  S.  157 234 

Ritchie  v.  Smith,  6  C.  B.  462 141 

Rivers  v.  Gregg,  5  Rich.  Eq.  274 ^,,     10 


CASES  CITED.  309 

Page 

Roberts  r.  Anderson,  8  Johns.  Ch.  871 ...»«..•«.•». ^^^  128 

V.  Beatty,  2  Pen,  &  W.  63 « ^,,..  190 

V.  Benjamin,  124  U.  S.  64,  8  Sup.  Ct  893.  ...................  .«..►.  237 

Robertson  v.  Vaughn,  5  Sandf.  1 41 

Robeson  v.  French,  12  Mete.  (Mass.)  24 146 

Robinson  v.  Fairbanks,  81  Ala.  132,  1  South.  552 93 

V.  Green,  3  Mete.  (Mass.)  159 50 

V.  Harvey,  82  111.  58 163 

V.  Hoskins,  14  Bush,   393 8 

V.  MacDonnell,  5  Maule  &  S.  228 25 

V.Morgan,    65   Vt   37,    25  Atl.   899 208,213 

V.  Weeks,  56  Me.  102 7 

V.  Weller,  81  Ga.  704,  8  S.  B.  447 27 

Robison  v.  Tyson,  46  Fa.  St  286. .  ► 179 

Roby  V.  West,  4  N.  H.  285 146,  149 

Rockford,  R.  I.  &  St  L.  R.  Co.  v.  Lent,  63  111.  288 189 

Rodger  v.  Comptoir  d'Escompte,  L.  R.  2  P.  C.  393 224 

Rodgers  v.  Jones,  129  Mass.  420,  422 61,  62 

V.  Niles,   11   Ohio   St   48 172 

V.  Phillips,  40  N.  Y.  519 56 

Rodliff  V.  Dallinger,  141  Mass.  1,  4  N.  E.  805 28,  109,  123 

Rodman  v.  Thalheimer,  75  Pa.  St.  232 115 

Rodwell  V.  Phillips,  9  Mees.  &  W.  501 46 

Roebllng's  Sons'  Co.  v.  Lock-Stitch  Fence  Co.,  130  III.  660,  22  N.  E.  518. .  228 

Roehl  V.  Haumesser,  114  Ind.  311,  15  N.  E.  345 77 

Rogers  V.  Hanson,  35  Iowa,  283 244 

V.  Thomas,   20   Conn.   54 217 

V.  Whitehouse,  71  Me.  222 90 

Rohde  V.  Thwaites,  6  Barn.  &  C,  388 98 

Rolan  V.  Gundy,  5  Ohio,  202 18 

Rommel  v.  Wlngate,  103  Mass.  327 102,  155,  188 

Rondeau  v.  Wyatt  2  H.  Bl.  63 37,  38 

Roots  V,  Dormer,  4  Barn.  &  Adol.  77 50 

Roper  V.  Johnson,  L.  R.  8  C.  P.  167 159,  237 

Ropes  V.  Lane,  9  Allen,  502 95 

Roscorla  v.  Thomas,  3  Q,  B.  234 162 

Roseman  v.  Canovan,  43  Cal.  110 113 

Rosenbaums  v.  Weeden,  18  Grat.   785 228 

Rosenthal  v.  Kahn,  19  Or.  571,  24  Pac.  989 88 

Rosevear  China  Clay  Co.,  Ex  parte,  11  Ch.  Div.  560 218,  221 

Ross  V.  Welch,  11  Gray,  235 48 

Roth  V.  Palmer,  27  Barb.  652 120 

Roughan  v.  Boston  &  L.  Block  Co.,  161  Mass.  24,  36  N.  E.  461 250 

Rouse  V.  Lewis,  4  Abb.  Dec.  121 155 


310  GASES   CITED. 

Pac* 

Routledge  r.  Grant,  4  Blng.  653 « 27 

Rovegno  v.  Defferarl,  40  Cal.  459 ^.  •     80 

Rowan  v.  Sharps'  Rifle  Manuf  g  Co.,  29  Conn.  283 24 

Rowley  v.  Blgelow,  12  Pick.  807,  312,  813 122,  215,  217,  219,  222,  226 

V.  Rice,  11  Mete.  (Mass.)  333 24 

Rucker  v.  Donovan,  13  Kan.  251,  252 217,  225,  226 

Ruckman  v.  Bergholz,  37  N.  J.  Law,  437 141 

Ruff  V.  Jarrett,  94  111.  475 117,  246 

Rugg  V.  Mlnett,  11  East,  210,  218 50,  86,  161 

V.  Moore,  110  Pa.  St.  236,  1  Atl.  320 194 

Rumsey  v.   Berry,   65   Me.   570 144 

Rupley  V.  Daggett,  74  111.  351 80 

Rusk  V.   Fenton,   14  Bush.   490 13 

Russell  V.  Carrlngton,  42  N.  Y.  118,  124 88,  95 

V.  O'Brien,  127  Mass.  349 132 

Rutan  V.  Ludlam,  29  N.  J.  Law,  398 248 

Ryan  v.  U.  S.,  136  U.  S.  68,  10  Sup.  Ct  913 74 

Ryder  v.  Neltge,  21  Minn.  70 174 

T.  WombweU,  L.  E.  3  Exch.  90,  93,  L.  R.  4  Exch.  32 9,  11 


s 

Safford,  Ex  parte,  2  Low.  563,  565,  Fed.  Cas.  No.  12,212 54,  56,  61,  62 

V.  Grout,  120  Mass.  20 117 

V.  McDonough,   120   Mass.   290,   291 61,62 

Salnsbury  v.  Matthews,  4  Mees.  &  W.  343 45 

St  Paul  Roller-Mill  Co.  v.  Great  Western  Dispatch  Co.,  27  Fed.  434 224 

Saladin  v.   Mitchell,  45  111.   79 228,  229 

Sale  V.  Darragh,  2  Hilt.  184 79 

Salisbury  v.  Stalner,  19  Wend.  159 170 

Salmon  r.  Boykln,  66  Md.  541,  7  Atl.  701 189 

Salmon  Falls  Manuf  g  Co.  v.  Goddard,  20  Curt  Dec.  376,  14  How.  448 

69,  72,  73,  75 

Salomon  v.  Hathaway,  126  Mass.  482 91 

Salomons  v.  Nlssen,  2  Term  R,  681 224 

Salte  V.  Field,  5  Term  R.  211  221 

Salter  v.  Burt,  20  Wend.  205 186 

V.  Woollams,  2  Man.  &  G.  650 ^  183 

Baltus  V.  Everett,  20  Wend.  267 17 

Sams  V.  Stockton,  14  B.  Mon.  232 «       » 

Sanborn  v.  Benedict  78  111.  309 232 

V.  Flagler,  9  Allen,  474,  476,  477 69-71,  75 

Sanderlin  v.  Trustees,  R.  M.  Charlt  (Ga.)  551 43 


CASES   CITED.  311 

Sanders  r.  Jameeon,  2  Car.  &  K.  657 ^ »...-... »<...^.  200 

V.  Johnson,   29  Ga.   526 ..»<»«.....  142 

y.  Keber,  28  Ohio  St.  630 .^.«.    90 

Y.  Maclean,  11  Q.  B.  Div.  327,  341 181 

Sandford  v.   Handy,  23  Wend.  260 114 

V.  Wiggins  Ferry  Co.,  27  Ind.  522 104 

Sands  v.  Lyon,  18  Conn.  18 186 

V.  Taylor,  5  Johns.  395 227 

Sarbecker  y.  State,  65  Wis.  171,  26  N.  W.  541 100,  195 

Sargent  v.  Currier,  49  N.  H.  311 166 

V.  Sturm,  23  Cal.  259 123 

Sari  y,  Bourdillon,  1  C.  B.  (N.  S.)  188 70 

Saunders  v.  Topp,  4  Bxch.  390,  18  Law  J.  Exch.  374 52.  5.5,  61,  199 

Saunderson  v.  Jackson,  2  Bos.  &  P.  238 68,  73,  75 

Sawyer  y.  Dean,  114  N.  Y.  469,  481,  21  N.  E.  1012 197,  227,  228 

y.  Fisher,  32  Me.  28 207 

y.  Gerrish,  70  Me.  254 25 

y.  Lufkin,   56  Me.   308 14 

Sayles  y.  Wellman,  10  R.  I.  465 143 

Scarfe  y.  Morgan,  4  Mees.  &  W.  270 142 

Schenck  y.  Saunders,  13  Gray,  37 3 

Schlesinger  y.  Stratton,  9  R.  I.  578,  580 93 

Schloss  y.  Hewlett,  81  Ala.  266,  1  South.  263 138 

Schmertz  y.  Dwyer,  53  Pa.  St.  335 100 

Schmidt  y.  Thomas,  75  Wis.  529,  44  N.  W.  771 57,  59 

Schneider  y,  Norris,  2  Maule  &  S.  286 75 

Schomp  y.  Schenck,  40  N.   J.  Law,  195 139 

Schotsmans  y.  Lancashire  &  Y.  Ry.  Co.,  2  Ch.  App.  332,  340 217,  218,  22G 

Schramm  y.  Boston  Sugar-Refining  Co.,  146  Mass.  211,  15  N.  E.  571 232 

y.  O'Connor,  98  111.  539 113 

Schreyer  y.  Kimball  Lumber  Co.,  4  C.  C.  A.  547,  54  Fed.  653 99 

Schuchardt  y.  Allans,  1  Wall.  359,  370 174 

Schuyler  y.  Russ,  2  Caines,  202 164 

Scoggln  y.  Slater,  22  Ala.  687 47 

Scorell  y.  Boxall,  1  Younge  &  J.  396 46 

Scott  y.  Eastern  Counties  Ry.  Co.,  12  Mees.  &  W.  33 37,  53 

y.  England,  2  Dowl.  &  L.  620 234 

V.  Raymond,  31  Minn.  437,  18  N.  W.  274 244 

y.  Wells,  6  Watts  &  S.  357 88 

Scotten  y.  Sutter,  37  Mich.  526 59 

Scranton  y.  Clark,  39  N.  Y.  220 166 

Scudder  v.  Bradbury,  106  Mass.  422,  427 84 

y.  Calais  Steamboat  Co.,  1  CliCf.  370,  378,  Fed.  Cas.  No.  12,565..  103,  104 
V.  Worcester,  11  Cush.  573 95 


312  GASES   CIT£D. 

Pac« 

Seath  ▼.  Moore,  11  App.  Cas.  850,  870,  880,  881.... « 82,  83,  88,  101,  104 

Seaver  v.  Phelps,  11  Pick.  304,  Bwell,  Lead.  Cas.  610 «.12,  13 

Seavy  v.  Potter,  121  Mass.  297 ^ « 120 

Secombe  v.  Nutt,  14  B.  Mon.  324 210 

Sedgwick  V.  Cottlngbam,  54  Iowa,  512,  6  N.  W.  738 88,  99 

Seed  V.  Lord,  66  Me.  5S0 85 

Seeley  v.  Welles,  120  Pa.  St.  69,  13  Atl.  738 154 

Seeligson  v.  Philbrick,  30  Fed.  600 107 

Seldenbender  v.  Charles,  4  Serg.  &  R.  150 140 

Seiple  V.  Irwin,  30  Pa.  St.  513,  515 203 

Seitz  V.  Brewers'  Refrigerating  Co.,  141  U.  S.  510,  12  Sup.  Ct.  46 172 

Selby  V.  Selby,  3  Mer.  2 75 

Sellers  v.  Stevenson,  163  Pa.  St  262,  29  Atl.  715 170 

Sentell  v.  Mitchell,  28  Ga.  196 31 

Sewall  V.  Fitch,  8  Cow.  215 41,  77 

Sexton  V.  Anderson,  95  Mo.  873,  8  S.  W.  564 120 

Seymour  v.  Newton,  105  Mass.  272,  275 215,  220 

Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720 77 

Sharp  V.  Carroll,  66  Wis.  62,  27  N.  W.  832 66 

Shattuck  V.  Green,  104  Mass.  42,  45 106,  167 

Shaw  V.  Carpenter,  54  Vt.  155 148 

V.  Gilmore,  81  Me.  396,  17  Atl.  314 25 

V.  Nudd,  8  Pick.  9 236 

V.  Smith,  48  Conn.  306 103 

Shawhan  v.  Van  Nest,  25  Ohio  St  490 103 

Shealy  v.  Edwards,  73  Ala.  175 88 

Shearick  v.  Huber,  6  Bin.  2 19 

Sheldon  v.  Capron,  3  R.  I.  171 29 

V.  Cox,  3  Barn.  &  C.  420 4 

Shepherd  v.  Gilroy,  46  Iowa,  193 162 

V.  Harrison,  L.  R.  4  Q.  B.  196,  493,  L.  R.  5  H.  L.  110,  127,  133.  .82,  106,  107 

V.  Jenkins,  73  Mo.  510 110 

V.  Pressey,  32  N.  H.  49,  57,  58 56,  57,  59 

Shepley  v.  Davis,  5  Taunt  617 95 

Sheppard  v.  Union  Bank  of  London,  7  Hurl.  &  N.  GGl,  31  Law  J.  0. 

Exch.  154 20 

Sherburne  v.  Shaw,  1  N.  H.  157 69 

Sherry  v.  PIcken,  10  Ind.  375 , 48 

Sherwalter  v.  Ford,  34  Miss.  417 164 

Sherwin  v.  Mudge,  127  Mass.  547 88 

Sherwood  v.  Walker,  68  Mich.  568,  33  N.  W.  919 80 

Shindler  v.  Houston,  1  N.  Y.  261 56,  63 

Shlpman  v.  Horton,  17  Conn.  481 7 

V.  Seymour,  40  Mich.  274,  283 116 


CASKS   CITED.  313 

Page 

Shipton  ▼,  Casson,  8  Barn.  &  C.  378,  382 «..► ► ^  ►*  190 

Shirk  V.  Shultz,  113  Ind.  571,  15  N.  E.  12 7 

Shufeldt  V.  Pease,  16  Wis.  659... 123 

Shumway  v.  Rutter,  8  Pick.  443 131 

Shurtleff  v.  Willard,  19  Pick.  202,  211 129 

Slevewrlght  t.  Archibald,  17  Q.  B.  103,  115,  20  Law  J.  Q.  B.  529 

67,  68,  79,  80 

SlCfken  V.  Wray,  6  East,  371 215 

Sillers  v.  Lester,  48  Miss.  513 26 

Simmonds  v.  Humble,  13  C.  B.  (N.  S.)  258 63 

Simmons  v.  Green,  35  Ohio  St.  104 179 

V.  Swift,  5  Barn.  &  C.  857,  862 83,  87 

Simon  V.  Metlvier,  1  Wm.  Bl.  599 77 

V.  Motives,  3  Burrows,  1921,  1  Wm.  Bl.  599 43 

Simonds  v.  Fisher,  cited  In  Gardner  v.  Grout,  2  C.  B.  (N.  S.)  340 53 

Simpson  v.  Crippin,  L.  R.  8  Q.  B.  14 193,  194 

V.  Krumdick,  28  Minn.  352.  354,  355,  10  N.  W.  18 54,  59 

V.  Nicholls,  3  Mees.  &  W.  244,  5  Mees.  &  W.  702 143 

Sims  V.  Marryat,  17  Q.  B.  281,  291,  20  Law  J.  Q.  B.  454 165 

Sinclair  v.  Hathaway,  57  Mich.  60,  23  N.  W.  459 173 

V.  Healy,  40  Pa.  St  417 123 

Singer  v.  Schilling,  74  Wis.  869,  43  N.  W.  101 123 

Singer  Manuf  g  Co.  v.  Cole,  4  Lea,  439 29 

V.  Sammons,  49  Wis.  316,  5  N.  W.  788 123 

Skidmore  v.  Romaine,  2  Bradf.  (Sur.)  122 14 

Skiff  V.  Johnson,  57  N.  H.  475 136 

Slayton  v.  McDonald,  73   Me.  50 4 

Sledge  V.  Scott,  56  Ala.  202 114,  118 

Sleeper  v.  Chapman,  121  Mass.  404 22 

V.  Davis,  64  N.  H.  59,  6  Atl.  201 123 

Slocum  V.  Seymour,  36  N.  J.  Law,  138 46 

Smart  v.  Batchelder,  57  N.  H.  140 88 

Smeed  v.  Foord,  1  El.  &  El.  602,  28  Law  J.  Q.  B.  178 239 

Smethurst  v.  Woolston,  5  Watts  &  S.  106 236 

Smith  v.  Arnold,  5  Mason,  414,  Fed.  Cas.  No.  13,004 77,  78 

V.  Atkins,  18  Vt.  461 25 

V.  Baker,  40  Law  T.  (N.  S.)  261 173 

T.  Bean,  15  N.  H.  577,  578 146,  147 

V.  Briggs,  3  Denio,  73 153 

V.  Bryan,  5  Md.  141 47 

V.  Case,  2  Or.  190 148 

V.  Chance,  2  Barn.  &  Aid.  753 183 

V.  Clark,  21  Wend.  83 8 

V.  Countryman,  30  N.  Y.  665,  681 113,  114 


314  CASES   CITEIX 

Pas» 
Smith  V.  Dennle,  6  Pick.  2G2 8» 

V.  Easton,  54  Md.  138 78 

T.  Edwards,  156  Mass.  221,  80  N.  B.  1017.. ...... ». 99,  100 

V.  Fisher,  59  Vt.  53,  7  Atl.  816 ^ 59 

V.  Glllett,  50  111.  290 183,  184 

V.  Goss,   1   Camp.    282 217,  221 

V.  Gowdy,  8  Allen,   566 27 

V.  Hale,  158  Mass.  178,  33  N.  E.  493 244 

V,  Howell,  11  N.  J.  Eq.  349 76 

V.  Hudson,  6  Best  &  S.  431,  34  Law  J.  Q.  B.  145 27,  52,  55,  58 

V.  Hughes,  L.  R.  6  Q.  B.  597 112 

V.  Ide,  3  Vt.  290 70 

V.  Jordan,  13  Minn.  264  (Gil.  246) 160 

V.  Kelley,  13  Mete.  (Mass.)  309 8 

V.  Lewis,  40  Ind.  98 110,  189 

V.  Lynes,  5  N.  Y.  41 89 

V.  Newton,  59  Ga.   113 116,  118 

V.  New  York  Cent.  R.  Co.,  •43  N.  Y.  180 41 

V.  Pettee,  70  N.  Y.  13,  18 '. 228 

V.  Shell,   82  Mo.   215 71 

V.  Skeary,  47  Conn.  47 126 

V.  Smith,  21   Pa.  St.  367 115 

V.  Smith,  30  Vt  139 122 

V.  Sparrow,  4  Bing.  84 142 

V.  Surman,  9  Barn.  &  C.  561,  568 39,  45,  59,  74 

V.  Thomas,  2  Bing.  N.  C.  372 239 

V.  Wheeler,  7  Or.  49 185 

Smithpeters  v.  Griffin,  10  B.  Mon.  259 9 

Smithurst  v.  Edmunds,  14  N.  J.  Eq.  408 26 

Smoot's  Case,  15  Wall.  36 158,  159 

Smyth  V.  Craig,  3  Watts  &  S.  14 83 

Sneathen  v.  Grubbe,  88  Pa.  St.  147 87 

Snee  v.  Prescot,  1  Atk.  245,  250 225 

Snelling  v.  Hall,  107  Mass.  134 169 

Snider  v.  Thrall,  56  Wis.  674,  14  N.  W.  814 64 

Snook  V.  Raglan,  89  Ga.  251,  15  S.  E.  264 91 

Soames  v.  Spencer,  1  Dowl.  &  R.  32 77 

Soflfe  V.  Gallagher,  3  E.  D.  Smith,  507 202 

Soltau  V.  Gerdau,  119  N.  Y.  380,  23  N.  E.  864 21 

Somerby  v.  Buntin,  118  Mass.  279 44,  241 

Somers  v.  Richards,  46  Vt.  170 114 

Sortwell  V.  Hughes,  1  Curt  244,  Fed.  Cas.  No.  13,177 135 

Souhegan  Nat.  Bank  v.  Wallace,  61  N.  H.  24 147 

Sousely  v.  Burns,  10  Bush,  87 179,  183 


CASES   CITED.  315 

Pac* 

South  Australian  Ins.  Co.  v.  Randell,  L.  R.  3  P.  O.  101 ►...«..      3 

Southern  Life  Ins.  &  Trust  Co.  v.  Cole,  4  Fla.  359 « . .     45 

Southwestern  Freight  &  Cotton  Exp.  Co.  v.  Plant,  45  Mo.  517 212 

V.  Stannard,  44  Mo.  71 84,  206,  208 

Spalding  V.  Ruding,  6  Beav.  276,  12  Law  J.  Ch.  503,  affirmed  15  Law 

J.   Ch.  374 224,  225 

Sparkes  v.  Marshall,  2  Bing.  N.  C,  761 98 

Sparkling  v.   Marks,  86  111.   125 244 

Spartan  v.  Benecke,  10  C.  B.  212,  19  Law  J.  C.  P.  293 207 

Spear  v.  Bach.  82  Wis.  192,  52  N.  W.  97 45 

Spencer  v.  Cone,  1  Mete.  (Mass.)  283 40 

V.  Hale,   30   Vt   314 56,  57 

Spickle-  T.  Marsh,  36  Md.  222 92,  93 

Spooner  v.  Baxter,  16  Pick.  409 186 

Springer  v.  Diosch,  32  Ind.  486 128 

Stafford  v.  Roof,  9  Cow.  626 7 

V.  Walter,  67  111.  83 195,   196 

Standard  Imp.  Co.  v.  Parlin  &  OrendorCC  Co.  (Kan.  Sup.)  33  Pac.  360 90 

Stange  v.  Wilson,  17  Mich.  342 185 

Stanley  v.  Gaylord,  1  Cush.  536 17 

V.  Jones,  7   Bing.  369 139 

St&nton  V.  Eager,  16  Pick.  467,  476 224 

V.  Small,  3  Sandf.   230 26 

V.  Willson,  3  Day,  37,  56 11 

Stapleton,  Ex  parte,  10  Ch.  Div.  586 227 

Starr  v.  Anderson,  19  Conn.  338 166 

V.  Bennett,  5  Hill,  303 115 

Startup  V.  Cortazzi,  2  Cromp.,  M.  &  R.  165 230 

V.  Macdonald,  6  Man.  &  G.  593,  624 187 

State  V.  Carl,  43  Ark.  353 101 

V.  Hastings,    15  Wis.    78 138 

V.  Intoxicating  Liquors,  73  Me.  278 101 

V.  O'Neil,  58  Vt  140,  2  Atl.  586 101 

V.  Williamson  (Mo.  Sup.)  23  S.  W.  1054 138 

Stead  V.  Dawber,  10  Adol.  &  B.  57 73 

Stearns  v.  Felker,  28  Wis.  594 ^.  139 

V.  Hall,  9  Cush.  31 73 

V.  Washburn,  7  Gray,  187,  189 234 

Stedman  v.  Gooch,  1  Esp.  5 202 

V.  Lane,  19  Pick.  547,  551 171 

Stephens  v.  Gifford,  137  Pa.  St.  219,  20  Atl.  542 129 

Sterling  v.  Baldwin,  42  Vt.  306 47 

Stevens  v.  Brennan,  79  N.  Y.  254,  258 122,  123 

V.  Shippen,  29  N.  J.  Eq.  602 ^...  104 


S16  CASES    CITED. 

Pag* 

Stevens  y.  Wheeler,  27  Barb.  658 220 

V,  Wilson,  3  Denio,  472 21 

Stevenson  v.  Burgiu,  49  Pa.  St.  36 188 

V.  McLean,  5  Q.  B.  Dlv.  346 28 

V.  Newnham,  13  C.  B.  285,  22  Law  J.  C.  P.  110 122 

V.  State,  65  Ind.  409 4 

Stewart  v.  Emerson,  52  N.  H.  301,  310 114,  120 

T.  Stearns,  63  N.  H.  99 118 

V.  Wyoming  Cattle  Ranche  Co.,  128  U.  S.  383,  388,  9  Sup.  Ct  101. .. .  112 
Stillwell  &  Blerce  Manuf  g  Co.  v.  Phelps,  130  U.  S.  520,  9  Sup.  Ct  601 . . .  236 

Stinson  v.  Clark,  6  Allen,  340 131 

V.  Ross,  51  Me.  556 19 

Stokes  V.  Baars,  18  Fla.  658 194 

Stollenwerck  v.  Thacher,  115  Mass.  224 21,  106 

Stone  V.  Browning,  51  N.  Y.  211,  68  N.  Y.  598 56,  57,  59,  61,  71 

V.  Dennlson,  13  Pick.  1 11 

y.  Marsh,  6  Barn.  &  C.  551 17 

V.  Peacock,  35  Me.  385,  388 95 

V.  Perry,   60  Me.  48 85,  91 

V.  Walte,  88  Ala.  599,  7  South.  117 91 

Stoolfire  V.  Royse,  71  111.  223 179 

Stoutenbourgh  v.  Konkle,  15  N.  J.  Eq.  33 115,  120 

Stoveld  V.  Hughes,  14  East,  308 212,  213 

Street  v.  Blay,  2  Barn.  «Sc  Adol.  456,  461 242-245 

Strickland  v.  Turner,  7  Exch.  208 ^ 23 

Strong  V.  Dodds,  47  Vt  348 ..195 

V.  Doyle,  110  Mass.  92 49 

V.   Taylor,  2  Hill,  326 90 

Stubbs  V.  Lund,  7  Mass.  453 219 

Stucley  V.  Baily,  1  Hurl.  &  C.  405,  417,  81  Law  J.  Exch.  483 163 

Studer  v.  Blelsteln,  115  N.  Y.  316,  325,  22  N.  E.  ^13 248 

Sturm  V.  Boker,  150  U.  S.  312,  330,  331,  14  Sup.  Ct.  99 3,  92,  93 

Sturtevant  v.  Ballard,  9  Johns.  337,  338 125 

V.  Orser,  24  N.  Y.  538,  539 219,  221 

Suit  V.  Woodhall,  113  Mass.  391,  395 87,  100,  136 

Sullivan  v.  Sullivan,  70  Mich.  583,  38  N.  W.  472 56 

Summers  v.  Vaughan,  35  Ind.  323 162 

Summerson  v.  Hicks,  134  Pa.  St.  566,  19  Atl.  808 29 

Sumner  v.  Cottey,  71  Mo.  121 90 

V.  Hamlet,  12  Pick.  76,  82 86 

V.  Woods,  67  Ala.  139 ^  „     90 

Suydam  v.  Clark,  2  Sandf.  133 79 

V.  Jenkins,  3  Sandf.  614 236 


CASES   CITED.  317 

Pag» 

Swain  V.  SchieffeHn,  134  N.  Y.  471,  31  N.  B.  1025 25a 

V.  Seamens,  9  Wall  254,  269 7a 

V.  Shepherd,  1  Moody  &  R.  223 ►.     92 

Swallow  V.  Emery,  111  Mass.  355 ^^     91 

Swann  v.  Swann,  21  Fed.  299 142 

Swasey  v.  Vanderheyden's  Adm'r,  10  Johns.  33 ^,.     11 

Sweeney  v.  Owsley,  14  B.  Mon.  413 84 

Swift  V.  Bennett,  10  Cush.  436,  437 10 

Syers  v.  Jonas,  2  Exch.  Ill,  117 169,  242 

Synins  v.  Schotten,  35  Kan.  310,  10  Pac.  828 220 

Symonds  v.  Hall,  37  Me.  354 -.«....«     19 


T 

Tacoma  Coal  Co.  v.  Bradley,  2  Wash.  St.  600,  27  Pac.  454 -..245,  247 

Taft  V.  Travis,  136  Mass.  95 ...^..     83 

Tailby  v.  Official  Receiver,  13  App.  Cas.  523 ►*    25 

Talcott  V.  Henderson,  31  Ohio  St.  162 115 

Tallman  v.  Franklin,  14  N.  Y.  584 72 

Talver  v.  West,  Holt,  178 ^     53 

Tansley  v.  Turner,  2  Scott,  238,  2  Bing.  N.  C.  151 64,  86,  88 

Tarling  v.  Baxter,  6  Barn.  &  C.  360 83 

Tatum  V.  Kelley,  25  Ark.  209 136 

Taylor,  Ex  parte,  8  De  Gex,  M.  &  G.  258 8 

V.  Bowers,  1  Q.  B.  Div.  291 147 

V.  Brooklyn  El.  R.  Co.,  119  N.  Y.  561,  23  N.  E.  1106 201 

V.  Caldwell,  3  Best.  &  S.  826,  32  Law  J.  Q.  B.  164 161 

V.  Fleet,  4  Barb.  95 30 

V.  Hare,  1  Bos.  &  P.  N.  R.  260 110,  111 

V.   Smith  (1893)  2  Q.  B.  65 ^..     58 

V.  Wakefield,  6  El.  &  Bl.  765 ^.     53 

Teague  v.  Irwin,  127  Mass.  217 .-. .  114 

Teal  V.  Auty,  2  Brod.  &  B.  99 46 

Telford  v.  Adams,  6  Watts,  429 128 

Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680 62 

Terry  v.  Bissell,  26  Conn.  23 110 

V.  Wheeler,  25  N.  Y.  520,  525 83,  87 

Textor  v.  Hutchings,  62  Md.  150 159 

Thacher  v.  Moors,  134  Mass.  156 21 

Thayer  v.  Luce,  22  Ohio  St  62 74 

V.  Turner,  8  Mete.  (Mass.)  550 121 

Third  Nat.  Bank  v.  Armstrong,  25  Minn.  530 ^  ., . .     91 

Thomas  v.  Shoemaker,  6  Watts  &  S.  179 .^ . .  ►^ . , « . .  186 


818  CASES  CITED. 

Thompson  t.  Alger,  12  Mete.  (Mass.)  428,  435,  443..  ^.„ 65,  232 

V.  Baltimore  &  O.  R.  Co.,  28  Md.  396 64,  209 

T.  Brannln  (Ky.)  21  S.  W.  1057 84 

V.  Cincinnati,  W.  &  Z.  R.  Co.,  1  Bond,  152,  Fed.  Cas.  No.  13,950 195 

V.  Conover,  32  N.  J.   Law,  466 86 

V.  Gardiner,  1  C.  P.  DIv.  777 79,  80 

V.  Gould,  20  Pick.  134,  139 23,  161 

V.  Lay,  4  Pick.  48 8 

T.  Libby,  35  Minn.  443,  29  N.  W.  150;  36  Minn.  287,  31  N.  W.  52 

118,  172,  247 

T.  Reynolds,  73  111.   11 139 

V.  Rose,  16  Conn.  71 123 

V.  Stewart,  7  Phlla.  187 218 

V.  Wedge,  50  Wis.  642,  7  N.  W.  560 89,  210 

Thorns  V.  Dingley,  70  Me.  100 248,  249 

Thomson  v.  Poor,  10  N.  Y.  Supp.  597,  57  Hun,  288;  22  N.  Y.  Supp.  570,  67 

Hun,   653 46 

Thorne  v.  McVeagh,  75  111.  81 163,  249 

Thornton  v.  Charles,  9  Mees.  &  W.  802 79,  80 

V.  Kempster,  5  Taunt.  786 29,  71,  74,  75,  80 

V.  Meux,  Moody  &  M.  43 79 

V.  Wynn,  12  Wheat.  183 243 

Thrall  V.  Wright,  38  Vt.  494 9,  11 

Threshing  Mach.  Co.  v.  Haven,  65  Iowa,  359,  21  N.  W.  677 249 

Thurnell  v.  Balblrnle,  2  Mees.  &  W.  786 33,  154 

Tigress,  The,  32  Law  J.  P.  M.  &  Adm.  97,  102 226 

Tlllock  V.  Webb,  56  Me.  100 143 

Tlngley  v.  Belllngham  Bay  Boom  Co.,  5  Wash.  644,  32  Pac.  737,  83  Pac 

1055  ^     76 

Tipton  V.  Feltner,  20  N.  Y.  423 179 

Tlsdale  V.  Buckmore,  33  Me.  461 121 

V.  Harris,  20  Pick.  9 44 

Titcomb  v.  Wood,  38  Me.  561 122 

Tomblin  v.  Callen,  69  Iowa,  229,  28  N.  W.  573 145 

Tomkinson  v.  Stalght,  25  Law  J.  C.  P.  85,  17  C.  B.  697 53 

Tompkins  v.  Haas,  2  Pa.  St.  74. 50 

Tone  V.  Wilson,  81  111.  529 115 

Torkelson  v.  Jorgenson,  28  Minn.  383,  10  N.  W.  410 163 

Torrey  v.  Corliss,  33  Me.  333 100,  149 

Toulmin  v.  Hedley,  2  Car.  &  K.  157 ,  .197,  198 

Towers  v.  Osborne,  1  Strange,  506 37,  40 

Towle  V.  Dresser,  73  Me.  252 7 

V.  Larrabee,  26  Me.  464 142 


GASES  CITED.  319 

Paga 

Towne  r.  Collins,  14  Mass.  500 18 

V.  Davis   (N.   H.)  22  Atl.  450 84 

Townley  v.  Crump,  4  Adol,  &  E.  58 209,  210 

Town  of  Meredith  v.  Ladd,  2  N.  H.  517 138 

Town  of  Thetford  v.  Hubbard,  22  Vt.  441,  446 138 

Townend  v.  Drakeford,  1  Car.  &  K.  20 79 

Townsend  v.  Cowles,  31  Ala.  428 115 

V.  Hargraves,  118  Mass.  325,  332,  334 56,  60,  63,  68,  81,  84 

Tracy  v.  Talmage,  14  N.  Y.  162,  176 135,  136 

Trainer  v.  Trumbull,  141  Mass.  527,  16  N.  E.  701 10 

Treadwell  v.  Reynolds,  39  Conn.  31 200 

Tregelles  v.  Sewell,  7  Hurl.  &  N.  574 100 

Tripp  V.  Armitage,  4  Mees.  &  W.  687 43,  101 

Trlst  V.  Child,  21  Wall.  441 148 

Troewert  v.  Decker,  51  Wis.  46,  8  N.  W.  26 142 

Trotter  v.  Heckscher,  40  N.  J.  Eq.  612,  4  Atl.  83 194 

Trudo  V.  Anderson,  10  Mich.  357 203 

Trueman  v.  Loder,  11  Adol.  &  E.  589 70 

Tucker  v.  Humphrey,  4  Bing.  516 215 

V.  Moreland,  10  Pet.  64 7 

V.  Mowray,  12  Mich.  378 147 

V.  West,  29  Ark.  386 143 

V.  Woods,  12  Johns.  190 28 

Tufts  V.  Grewer,  83  Me.  407,  22  Atl.  382 103 

V.  Griffin,  107  N.  C.  49,  12  S.  E.  68 91 

V.  Lawrence,  77  Tex.  526,  14  S.  W,  165 103 

V.  McClure,  40  Iowa,  317 185 

V.  Plymouth  Gold  Min.  Co.,  14  Allen,  407 68 

V.  Sylvester,  79  Me.  213,  9  Atl.  357 221 

V.  Wynne,  45  Mo.  App.  42 91 

Tull  V.  David,  45  Mo.  444 77 

Tupper  V.  Cadwell,  12  Mete.  (Mass.)  559,  562,  563 10,  11 

Turberville  v.  Whitehouse,  1  Car.  &  P.  94 10 

Turley  v.  Bates,  2  Hurl.  &  C.  200,  33  Law  J.  Exch.  43 88 

Turner  v.  Felgate,  1  Lev.  95 ►. . . .     19 

V.  Harvey,    Jac.    170 113 

V.  Huggins,  14  Ark.  21 112 

V.  Mason,  65  Mich.  662,  32  N.  W.  846 42 

V.   Rusk,  53  Md.  65 12 

V.  Trisby,  1  Strange,  168 10 

V.  Trustees  of  Liverpool  Docks,  6  Exch.  543,  20  Law  J.  Exch.  394..106,  218 

Tuthill  V.  Skidmore,  124  N.  Y.  148,  26  N.  E.  348 208 

Tuttle  V.  Brown,  4  Gray,  457 163 

V.  Holland,  43  Vt  542 135 


320  CASES    CITED. 

Pac» 

Twyne's  Case,  3  Coke.  80,  1  Smith,  Lenfl.  Cas.  1 127 

Tyler  v.  Carlisle,  79  Me.  210,  9  Atl.  356 «...  147 

V.  Freeman,  3  Cush.  261. ...  .^ ^ «...,,,«  «80,  89 

u 

Uhler  V.  Semple,  20  N.  J.  Eq.  288 .^ .. .  113 

Ullmann  v.  Kent,  60  III.  271 229 

Underwood  v.  Wolf,  131  111.  425,  23  N.  E.  598 245 

Union  Nat.  Bank  v.  Hunt,  76  Mo.  439 118 

United  States  v.  Bradley,  10  Pet.  343 148 

V.  Lapene,   17  Wall.  601 136 

V.  Peck,  102  U.  S.  65 „  158 

V.  Robeson,  9  Pet  319,  327 153 

V.  Shrlver,  23  Fed.  134 101 

United  States  Reflector  Co.  v.  Rushton,  7  Daly,  410 54 

Upson  V.  Holmes,  51  Conn,  500 46,  88 

Upton  V.  Sturbridge  Cotton  Mills,  111  Mass.  446 89 

V.  Tribilcock,  91  U.  S.  45,  49 _    115 

Upton  Manuf  g  Co.  v.  Huiske,  09  Iowa,  557,  29  N.  W.  621 244 

Utley  V.  Donaldson,  94  U.  S.  29,  47 «     28 


V 

Vail  V.  Strong,  10  Vt.  457 «►...      4 

Valentine  v.  Brown.  18  Pick.  549 103 

Valentin!  v.  Canali,  24  Q.  B.  Div.  166 ^ 8 

Valpy  V.  Gibson,  4  C.  B.  837,  864 32,  33,  222 

V.  Oakeley,  16  Q.  B.  941,  951,  20  Law  J.  Q.  B.  380 207-209,  227,  236 

Van  Bracklin  v.  Fonda,  12  Johns.  468 173 

Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  75,  35  N.  E.  415 228,  229 

Van  Casteel  v.  Booker,  2  Exch.  691 106,  218 

Vandenbergh  v.  Spooner,  L.  R.  1  Exch.  316,  35  Law  J.  Exch.  201 69 

Van  Epps  v.  Harrison,  5  Hill,  63 114 

Van  Eps  v.  Schenectady,  12  Johns.  436 50 

Van  Hoozer  v.  Corey,  34  Barb.  9 25 

Van  Horn  v.  Rucker,  33  Mo.  391 228 

Van  Woert  v.  Albany  &  S.  R.  Co.,  67  N.  Y.  538 60 

Van  Wyck  v.  Allen,  69  N.  Y.  61 171,  172,  249 

Varney  v.  French,  19  N.  H.  233 142 

Vawter  v.  Griffin,  40  Ind.  600 44 

Veasey  v.  Doton,  3  Allen,  380,  381 113 

Veazie  v.  Holmes,  40  Me.  69 99 

V.  Williams,  8  How.  134,  158 ^ ..„..  122 


CASES    CITED.  321 

Page 

Vent  T.  Osgood,  19  Pick.  572,  575 11 

Ventress  v.  Smith,  10  Pet.  161,  2  Kent,  Comm.  324 18 

Venus,  The,  8  Cranch,  253,  275 87 

Vertue  v.  Jewell,  4  Camp.  81 224 

Vickers  v.  Vickers,  L.  R.  4  Eq.  529 33 

Vidette,  The,  34  Fed.  396 226 

Viele  V.  Osgood,  8  Barb.  130 75 

Vietor  v.  Stroock  (City  Ct  N.  Y.)  3  N.  Y.  Supp.  801;   (Com.  PI.  N.  Y.)  5  N. 

Y.   Supp.   659 54 

Vincent  v.  Germond,  11  Johns.  282 56 

V.  Leland,  100  Mass.  432 244 

Vlnlng  V.  Gilbreth,  39  Me.  496 131,  181 

Vinx  V.  Beatty,  61  Wis.  645,  ,21  N.  W.  787 143 

Voorhis  v.  Olmstead,  65  N.  Y.  113 212 

Vulicevich  v.  Skinner,  77  Cal.  239,  19  Pac.  424 48 

W 

Wabash  Elevator  Co.  v.  First  Nat.  Bank  of  Toledo,  23  Ohio  St.  311..   .84,  85 

Waddington  v.  Oliver,  2  Bos.  &  P.  (N.  R.)  61 190 

Wagner  v.  Breed,  29  Neb.  720,  46  N.  W.  286 149 

V.  Hallack,  3  Colo.  176 101 

Wailing  v.  Toll,  9  Johns.  141 10 

Wain  V.  Warlters,  5  East,  10,  2  Smith,  Lead.  Cas.  (8th  Ed.)  251 70 

Wainer  v.  Milford  Mut.  Fire  Ins.  Co.,  153  Mass.  335,  26  N.  E.  877 81 

Wait  V.  Baker,  2  Exch.  1,  8 98,  102,  106,  195 

Waite  V.  Jones,  1  Bing.  (N.  C.)  656 148 

Waldron  v.  Chase,  37  Me.  414 95 

Walker  v.  Davis,  65  N.  H.  170,  172,  18  AU.  196 189 

V.  Lovell,  28  N.  H.  138 148 

V.  Nussey,  16  Mees.  &  W.  302 05,  66 

V.  Supple,  54  Ga.  179 44 

Wallace  v.  Breeds,  13  East,  522 95 

V.  Lark,  12  S.  C.  576 135 

Waller  v.  Drakeford,  22  Law  J.  Q.  B.  274 22 

Walsh  V.  Morse,  80  Mo.  569 116 

v.  Young,  110  Mass.  396 7 

Walter  v.  Ross,  2  Wash.  283,  Fed.  Cas.  No.  17,122 224 

Walton  V.  Black,  5  Houst.   149 184,  194 

Wanamaker  v.  Yerkes,  70  Pa.  St  443 208 

Wanser  V.  Messier,  29  N.  J.  Law,  256 167 

Ward  V.  Hobbs,  3  Q.  B.  Div.  150,  4  App.  Cas.  13 112 

V.  Shaw,  7  Wend.  404 84,  89 

V.  Taylor,  55  111.  494 106,  196 

SALES— 21 


322  CASES    CITED. 

Page 

Warden  r.  Marshall,  99  Mass.  305 199,  210 

Warder,  Bushnell  &  Glessncr  Co.  v.  Whitish.  77  Wis.  430,  46  N.  W.  540..   151 

Warder,  MitcheU  &  Co.  v.  Hoover,  51  Iowa,  491,  1  N.  W.  795 89 

Ware  River  R.  R.  v.  Vibbard,  114  Mass.  447 20G 

Warfield  v.  Warfleld,  76  Iowa,  633,  41  N.  W.  383 13 

Waring  v.  Mason,  IS  Wend.  425 174 

Warner  v.  Arctic  Ice  Co.,  74  Me.  475 173 

V.  Martin,  11  How.  209 21 

V.  Norton,  20  How.  448,  460 127 

V.  Willington,  3  Drew,  523,  25  Law  J.  Oh.  662 70 

Warren  v.  Chapman,  105  Mass.  87 148 

V.  Millilien,  57  Me.  97 96 

V.  Philadelphia  Coal  Co.,  83  Pa.  St.  437,  440 163 

Warren  Chemical  &  Manufacturing  Co.  v.  Holbrook,  118  N.  Y.  586,  23 

N.  E.  908 41 

Warren  Glass- Works  Co.  v.  Keystone  Coal  Co.,  05  Md.  547,  5  Atl.  253. ..  172 

Warten  v.  Strane,  82  Ala.  311,  8  South.  231 95 

Warwick  v.  Bruce,  2  Maule  &  S.  205 7,  48 

Washbourn  v.  Burrows,  1  Exch.  107 45 

Washington  Ice  Co.  v.  Webster,  62  Me.  341,  361 53 

Watchman  v.  Crook,  5  Gill  &  J.  239 152 

Waterhouse  v.  Skinner,  2  Bos.  &  P.  447 179 

Waterman  v.  Meigs,  4  Cush.  497 37,  40,  71 

Waters  Heater  Co.  v.  Mansfield,  48  Vt  378 92 

Watkins  v.  Paine,  57  Ga.  50 100,  200 

V.  Wyatt,  9  Baxt.  250 25 

Watson,  Ex  parte,  5  Ch.  Div.  35 221,  225 

V.  Inhabitants  of  Needham,  161  Mass.  404,  37  N.  E.  204 239 

V.  Roode,  30  Neb.  264,  46  N.  W.  491 163 

'Watts  V.  Ainsworth,  1  Hurl.  &  C.  83,  31  Law  J.  Exch.  448 71 

V.   Cummins,  59  Pa.   St.  84 113 

V.  Friend,  10  Barn.  &  C.  446 45,  50 

V.  Hendry,  13  Fla.  523 96 

Way  V.  Wakefield,  7  Vt.  228 4 

Waymell  v.  Reed,  5  Term  R.  599 136,  149 

Weaver  v.  Wallace,  9  N.  J.  Law,  251 118 

Webb  v.  Baltimore  &  E.  S.  R.  Co.,  77  Md.  92,  26  Atl.  113 44 

V.  Fairmaner,  3  Mees.  &  W.  473 186 

Webber  v.  Donnelly,  33  Mich.  469 135 

Webster  v.  Anderson,  42  Mich.  554,  4  N.  W.  288 62 

v.  Munger,  8  Gray,  584 ^ 136,  137,  149 

Weed  V.  Page,  7  Wis.  503 120 

Weeks  v.  Hull,  19  Conn.  376 186 

v.  Pike,  60  N.  H.  447 90 


GASES   CITED.  323 

Page 

Weidmann  v.  Champion,  12  Daly,  522 79 

Weimer  v.  Clement,  37  Pa.  St.  147 ^ 170 

Weir  V.  Bell,  3  Exch.  Dlv.  238,  242 116 

V.  Hudnut,  115  Ind.  525,  18  N.  E.  24 66 

Weld  V.  Came,  98  Mass.  152 87 

V.  Cutler,  2  Gray,  195 96 

Wellauer  v.  Fellows,  48  Wis.  105,  4  N.  W.  114 31 

Wells  V.  Calnan,  107  Mass.  514 161 

V.  Cook,  16  Ohio  St.  67 117 

V.  Day,  124  Mass.  38 50 

V.  Foster,  8  Mees.  &  W.  149 138 

Wentworth  v.  Dows,  117  Mass.  14 246 

V.  Outhwaite,  10  Mees.  &  W.  436 226 

V.  Tubb,  1  Younge  &  C.  Ch.  171 14 

Westbrook  v.  Eager,  16  N.  J.  Law,  81 48 

Westcott  V.  Thompson,  18  N.  Y.  363 3 

Western  Bank  of  Scotland  v.  Addle,  L.  R.  1  H.  L.  Sc.  145 116 

West  Jersey  R.  Co.  v.  Trenton  Car-Works  Co.,  32  N.  J.  Law,  517 103 

Westzinthus,  In  re,  5  Barn.  &  Adol.  817 224 

Wetherlll  v.  Neilson,  20  Pa.  St.  448 169 

Wharton  v.  Mackenzie,  5  Q.  B.  606 9,  11 

Wheat  V.  Cross,  31  Md.  99 30,  110 

Wheeler  v.  GIvan,  65  Mo.  89 203 

V.  Russell,  17  Mass.  258 141 

V.  Sumner,  4  Mason,  183,  Fed.  Cas.  No.  17.501 131 

V.  Woodward,  66  Pa.  St.  158 201 

Wheeler  &  Wilson  Manuf'g  Co.  v.  Teetzlaff,  53  Wis.  211,  10  N,  W.  155  ..  91 

V.  Thompson,  33  Kan.  491,  6  Pac.  902 249 

Wheelhouse  v.  Parr,  141  Mass.  593,  6  N.  E.  787 102,  196 

Wheelwright  v.  Depeyster,  1  Johns.  471 18 

Whipple  V.  Foot,  2  Johns.  418 48 

Whistler  v.  Forster,  32  Law  J.  C  P.  161 17 

Whitaker  v.  McCormick,  6  Mo.  App.  114 156 

V.  Sumner,  20  Pick.  399 3 

Whltbeck  v.  Van  Ness,  11  Johns.  409 202 

Whitcomb  v.  Joslyn,  51  Vt  79 7 

V.     Whitney,  24  Mich.  485 103 

White,  Ex  parte,  6  Ch.  App.  397 29 

V.  Barber,  123  U.  S.  392,  8  Sup.  Ct  22 144 

V.  Drew,  56  How.  Pr.  53 66 

V.  Foster,  102  Mass.  375,  378,  379 46-48 

V.  Franklin  Bank,  22  Pick.  181,  189 147 

V.  Garden,  10  C.  B.  919,  20  Law  J.  C.  P.  166,  167 22,  122 

T.  Miller,  71  N.  Y.  118,  78  N.  Y.  393 156,  157,  171,  249 


324  CASES    CITED. 

Pag» 

White  V.  Mitchell,  38  Mich.  390 220,  221 

V.  Spettigue,  13  Mees.  &  W.  G03 17 

V.  Welsh,  38  Pa.   St.  396 209 

V,  Wilks,  5  Taunt.    176 95 

Whiteford  v.  Hitchcock,  74  Mich.  208,  41  N.  W.  898 34 

Whitehead  v.  Anderson,  9  Mees.  &  W.  518,  534..  .215,  220,  222,  223,  225,  226 

Whltehouse  v.  Frost,  13  Bast,  614 95 

Whiteside  v.  Brawley,  152  Mass.  133,  134,  24  N.  E.  1088 120 

Whitesides  v.  Hunt,  97  Ind.  191 144,  145 

Whitmarsh  v.  Walker,  1  Mete.  (Mass.)  313 45 

Whitmore  v.  South  Iron  Co.,  2  Allen,  52 1G9 

Whitney  v.  Boardman,  118  Mass.  ^2,  248 227,  228 

V,  Eaton,  15  Gray,  225 85,  89 

V.  Goin,  20  N.  H.  354 202 

V.  Heywood,  6  Gush.  82,  86 166 

V.  McConnell,  29  Mich.  12 91 

V.  National  Bank  of  Potsdam,  45  N.  Y.  303 110 

Whiton  V.  Spring,  74  N.  Y.  169,  173 203 

Whittemore  v.  Gibbs,  24  N.  H.  484 44 

Whittier  v.  Dana,  10  Allen,  326 73 

Wbywall  v.  Champion,  2  Sti-ange,  1083 10 

Widoe  V.  Webb,  20  Ohio  St.  431 148 

Wiener  v.  Whipple,  53  Wis.  298,  302,  10  N.  W.  433 77 

Wigand  v.  Sichel,  42  N.  Y.  120 120 

Wiggins  V.  Snow,  89  Mich.  476,  50  N.  W.  991 91 

Wigton  V.  Bowley,  130  Mass.  252 89,  107 

Wilcox  V.  Owens,  64  G a.  601 176 

V.  Roath,  12  Conn.  550 8 

Wilcox  Silver  Plate  Co.  v.  Green,  72  N.  Y.  17 61,  195 

Wilder  v.  Weakley,  34  Ind.  181 13 

Wildey  v.  Crane,  63  Mich.  720,  30  N.  W.  327 139 

Wilkes  V.  Ferris,  5  Johns.  335 182 

Wilkins  v.  Holmes,  5  Cush.  147 101 

Wilkinson  v.  Evans,  L.  R.  1  C.  P.  411 68 

V.  Heavenrich,  58  Mich.  574,  26  N.  W.  139 75 

V.  Rex,  2  Camp.  335 18 

Wilks  V.  Davis,  3  Mer.  507 33 

Williams  v.  Bacon,  2  Gray,  387 77 

V.  Briggs,  11  R.  I.  476 24 

V.  Given,  6  Grat.  268 123 

V.  Hodges,  113  N.  C.  38,  18  S.  E.  83 222 

V.  Jackman,  16  Gray,  514 104 

Y.  Jones,  1  Bush.  621 232 

V.  Merle,  11  Wend.  80 17 


CA3ES   CITSD.  S25 

Page 

Williams  y.  Miller,  10  Conn.  146 19 

V.  Moor,  11  Mees.  &  W.  256 8 

V.  Pasquall,  Peake,  Add.  Cas.  197. . . .  « 8 

V.  Paul,   6  BIng.   653 143 

V.  Reynolds,  6  Best  &  S.  495,  34  Law  J.  Q.  B.  221 240 

V.  Robinson,  73  Me.  186 69-71,  75 

V.  Spafford,  8  Pick.  250 174 

V.  Wentworth,  5  Beav.  325 14 

V.  Winsor,  12  R.  I.  9 26 

V.  Woods,  16  Md.  220 79 

Williamson  v.  Berry,  8  How.  495,  544 1,  4,  5 

V.  New  Jersey  S.  R.  Co.,  28  N.  J.  Eq.  277,  293,  29  N.  J.  Eq.  311,  319. .  124 

V.  Russell,  39  Conn.  406 122 

V.  Sammons,  34  Ala.  691 166 

Willoughby  v.  Moulton,  47  N.  H.  205 124 

Wilson  V.  Fisher,  5  Houst.  395 124 

V.  Reedy,  32  Minn.  256,  20  N.  W.  153 250 

V.  White,  80  N.  C.  280 115 

Wiistach  V.  Heyd,  122  Ind.  574,  23  N.  E.  963 74 

Winchell  v.  Gary,  115  Mass.  560 143 

Winchester  v.  King,  46  Mich.  102,  8  N.  W.  722 90 

Windmuller  y.  Pope,  107  N.  Y.  674,  14  N.  E.  436 159 

Wineland  v.  Coonce,  5  Mo.  296 123 

WInfield  V.  Dodge,  45  Mich.  355,  7  N.  W.  906 147 

Wing  V.  Clark,  24  Me.  366 84 

Winslow  V.  Leonard,  24  Pa.  St.  14 83,  130 

Winsor  v.  Lombard,  18  Pick-  57,  60,  62 156,  168,  171,  174 

Wire  V.  Foster,  62  Iowa,  114,  17  N.  W.  174 236 

Wisconsin  Red  Pressed-Brick  Co.  v.  Hood,  54  Minn.  543,  50  N.  W.  165 .. .  172 

V.  Hurd  Refrigerator  Co.  (Minn.)  62  N.  W.  550 177 

Witherow  v.  Witherow,  16  Ohio,  238 31,  190 

Withers  v.  Greene,  9  How.  213 245,  246 

V.  Lyss,  4  Camp.  237 87 

y.  Reynolds,  2  Barn.  &  Adol.  882 193 

Wittkowsky  v.  Wasson,  71  N.  C.  451 33 

Wolcott  V.  Mount,  36  N.  J.  Law,  262,  38  N.  J.  Law,  496 157,  171,  247,  249 

Wolf  V.  Dietzsch,  75  111.  205 102 

Wolfenden  v.  Wilson,  33  U.  C.  Q.  B.  442 42 

Wood  V.  Bell,  6  El.  &  Bl.  355,  affirming  5  EL  &  Bl.  772 101 

V.  Boynton,  64  Wis.  265,  25  N.  W.  42 30 

V.  Dixie,  7  Q.  B.  892 125 

y.  Losey,  50  Mich.  475,  15  N.  W.  557 11 

y.  MarUey,  11  Adol.  &  E.  34 183 

T.  RowclifCe,  6  Hare,  183 20 


3-G  CASES   CITED. 

Page 

Wood  V.  Sheldon,  42  N.  J.  Law,  421 110 

V.  TasseU,  6  Q.  B.  234 183 

V.  Yeatman,  15  B.  Mon.  270 123,  220 

Woodcock  V.  Bennet,  1  Cow.  711 19 

Woodle  V.  Whitney,  23  Wis.  55 157 

Woodley  v.  Coventry,  2  Hurl.  &  C.  164,  32  Law  J.  Exch.  1S3 212 

Woodruff  V.  Hinman,  11  Vt.  592 148 

Woods  V.  McGee,  7  Ohio,  127 95,  96 

V.  Russell,  5  Barn.  &  Aid.  942 104 

Woodward  v.  Semans,  125  Ind.  330,  25  N.  E.  444 3 

Word  V.  Cavin,  1  Head,  506 167 

Wright  V.  Daimah,  2  Camp.  203 77 

V.  Davenport,  44  Tex.  164 243,  246 

V.  Solomon,  19  Cal.  64 21 

T.  Tetlow,  99  Mass.  397 104 

V.  Weeks,  25  N.  Y.  153 71 

V.  Zeigler,  70  Ga.  501 121 

Wylie  V.  Kelly,  41  Barb.  594 63 

Y 

Yerby  v.  Grlgsby,  9  Leigh,  387 77 

York  Co.  Bank  v.  Carter,  38  Pa.  St.  446 126 

Young  v.  Burton,  1  McMul.  Eq.  255 241 

V.  Heermans,  66  N.  Y.  374 126 

V.  Mertens,  27  Md.  114,  126 228,  229 

V.  Miles,  20  Wis.  646 96 

▼.  Stevens,  48  N.  H.  133 -. 13 


Z 

Zabrlskle  v.  Central  Vt  R.  Co.,  131  N.  Y.  72,  29  N.  E.  1006 246,  248 

Zacharie  v.  Franklin,  12  Pet.  151 75 

Zagury  v.  Fumell,  2  Camp.  240 87 

Zaleski  v.  Clark,  44  Conn.  218 „....   154 

Zimmerman  v.  Morrow,  28  Minn.  367,  10  N.  W.  139 162,  163 

Zoeller  v.  Riley,  100  N.  Y.  102,  2  N.  E.  388 22 

Zouch  V.  Parsons,  3  Burrows,  1794 7,  15 

Zuchtmann  v.  Roberts,  109  Mass.  53 90 

Zuck  V.  McClure,  98  Pa.  St  541. . . . ^  « . .  « .^..^..  159 


INDEX. 

[the  figures  refer  to  pages.] 


A 

"ABOUT," 

meaning  of,  see  "Performance  of  Contract** 

1.C0BPTAN0E, 

In  performance  of  contract,  duty  of  buyer  to  accept,  178,  198. 
meaning  of  acceptance,  109. 
express  acceptance,  199. 
Implied  acceptance,  acts  of  ownership,  199. 
failure  to  reject,  200. 
where  seller  delivers  too  much,  property  does  not  pass  until  buyer  accepts, 

102. 
when  chattel  Is  made  to  order,  whether  acceptance  necessary  to  pass  prop- 
erty, 103. 
action  for  nonacceptance,  see  "Action." 
under  statute  of  frauds,  see  "Statute  of  Frauds.'* 
right  to  reject,  see  "Rejection." 

ACTION, 

personal  against  buyer,  where  property  has  not  passed,  231. 
action  for  nonacceptance,  231. 
damages  for  nonacceptance,  231,  232. 
where  property  has  passed,  233. 
action  for  price,  233. 
whether  seller  may  rescind,  234. 
personal  against  seller,  action  for  nondellTery,  236. 
damages  for  nondelivery,  235. 
damages  where  there  is  no  market  price,  237. 
special  damages,  237. 

communication  of  special  circumstances,  238. 
to  enforce  specific  performance,  240. 
for  conversion,  241. 
for  breach  of  warranty,  243.  244. 
right  to  reject,  242,  243,  244. 

buyer's  right  to  plead  breach  of  warranty  in  diminution  of  dam- 
ages, 245. 
■ALBS.  (827) 


328  INDEX. 

[The  figures  refer  to  pages.] 

ACTION— Continued, 

breach  of  condition  as  breach  of  warranty,  246. 
damages  for  breach  of  warranty,  243. 
special  damages,  249. 

ACTUAL  RECEIPT, 

see  "Statute  of  Frauds." 

AFTER-ACQUIRED  PROPERTY, 
sale  of,  24. 

AGENT, 

payment  to,  203. 

authorized  to  sign  tmder  statute  of  frauds,  se*  "Statute  of  Frauds. 

ALIEN  ENEMY, 

sale  to  Illegal,  186. 

ANTECEDENT  DEBT. 

not  value,  in  purchase  imder  voidable  title,  123. 
transfer  of  bill  of  lading  for,  224. 

APPARENT  OWNERSHIP, 

does  not  give  power  to  sell,  16. 

APPROPRIATION, 

of  goods  to  contract,  see  "Property,  Transfer  of." 

APPROVAL, 
sale  on,  91. 

ASSENT, 

see  "Mutual  Assent** 

ATTORNMENT, 

delivery  by,  62-64,  210. 

of  carrier,  to  terminate  right  of  stoppage  In  transitu,  223. 

AUCTIONEER, 

agent  authorized  to  sign  under  statute  of  frauds,  77. 

AUCTION  SALES, 

within  statute  of  frauds,  43. 


BAILMENT, 

distinguished  from  sale,  3. 

BARGAIN  AND  SALE.  2. 

BARTER, 

distinguished  from  sale,  8. 
BILL  OF  EXCHANGE, 

see  "Bills  and  Notea.** 


B 


INDEX.  829 

[The  figures  refer  to  pages.] 

BILL  OP  LADING, 
nature  of,  105,  181. 

reservation  of  right  of  disposal  by,  see  "Property,  Transfer  of." 
transfer  of,  as  defeating  seller's  lien,  21L 
transfer  of  as  defeating  right  of  stoppage  in  transitu,  228. 

BILLS  AND  NOTES. 

whether  within  statute  of  frauds,  44. 
as  conditional  payment,  201. 
effect  of  taking,  on  seller's  lien.  209. 
refusal  to  give  for  price,  234. 
see  "Negotiable  Instruments." 

BONA  FIDE  PURCHASER, 
in  marlset  overt,  16,  18. 
of  negotiable  securities,  16,  18. 
under  factor's  acts,  16,  19. 
from  buyer  under  voidable  title,  16,  27,  119,  122. 

does  not  include  attaching  creditor  or  assignee  In  bankruptcy,  122. 

or  one  taking  for  pre-existing  debt,  122. 
where  original  seller  is  estopped,  16,  22. 
from  one  whose  title  is  voidable  as  against  creditors,  124,  123. 

BOUGHT  NOTE, 

of  broker,  as  memorandum  under  statute  of  frauds,  78. 

BREACH  OP  CONTRACT, 
see  "Action." 

BROKER, 

as  agent  authorized  to  sign  under  statute  of  frauds,  78. 
payment  to,  203. 

0 

CAPACITY  OF  PARTIES, 
in  general,  6. 

distinguished  from  authority,  to  contract,  8, 
of  Infants,  6. 

of  lunatics  and  drunken  men,  12. 
of  married  women,  14. 

CARRIER, 

agent  to  receive,  but  not  to  accept,  under  statute  ot  frauds,  57,  61. 
effect  of  delivery  to  In  transferring  the  property,  see  "Property,  Trans- 
fer of." 
delivery  to  in  performance  of  contract,  195. 
delivery  to,  ends  seller's  lien,  211. 
stoppage  in  transitu  of  goods  in  possession  of,  see  "Stoppage  In  Transitu." 


330  INDEX. 

(The  figures  refer  to  pages.] 

CASH, 

payment  In,  see  "Credit"  and  "Payment,** 

OAVEAT  EMPTOR,  112,  168. 
CHAMPERTY,  139. 
CHANCE, 
sale  of,  26. 

CHATTEL, 

made  to  order,  when  property  passes,  103. 

specific,  when  property  passes,  see  "Property,  Transfer  of." 

unascertained,  when  property  passes,  see  "Property,  Ti-ansfer  of.** 

CHATTEL  MORTGAGE, 

statutes  regulating,  90,  note  88. 

CHOSES  IN  ACTION, 

whether  within  statute  of  frauds,  44. 
O.  O.  D., 

delivery  to  carrier  O.  O,  D.,  effect  of  In  transferring  property,  100. 

CONDITIONS, 

sale  subject  to,  2,  86,  97. 

delivery  subject  to,  84. 

conditional  sale,  accompanied  by  delivery,  89. 

construed  as  chattel  mortgages  under  some  statutes,  90,  note  88. 
sale  on  trial  or  approval,  91. 
sale  or  return.  9L 

delivery  to  carrier  subject  to,  104,  105. 
In  general,  150. 

distinguished  from  warranties,   150. 
conditions  precedent,  151. 
conditions  concurrent,  151. 
performance  of  conditions  precedent,  152. 

suspensory  conditions,  153. 

sale  dependent  on  act  of  third  person,  153. 

sale  of  goods  to  be  satisfactory,  154. 

stipulations  as  to  time,  when  time  of  essence,  164. 
In  sale  by  description,  155,  171. 
excuses  for  nonperformance,  157. 

waiver,  158. 

fulfillment  of  condition  prevented  by  other  party,  158, 

renunciation  of  contract,  157,  158. 

Impossibility  of  performance,  158,  160i 

by  destruction  of  thing  sold,  160. 

legal  impossibility,  161. 


INDEX.  831 

[The  figures  refer  to  pages.] 

CONDITIONS— Continued, 

implied  warranty  of  quality  strictly  a  condition,  175. 
in  sale  by  sample,  175. 

payment  and  delivery  usually  concurrent,  178. 
in  contracts  for  delivery  by  installments,  194. 
conditional  payment,  201. 
right  to  reject  for  nonfulfillment  of,  242. 
breach  of  condition  as  breach  of  warranty,  246. 
see  "Warranties." 

CONFLICT  OF  LAWS, 
see  "Illegality." 

CONSIDERATION, 
failure  of,  109. 

right  of  buyer  to  rescind  contract  for,  109. 
to  authorize  rescission,  failure  must  be  total,  110. 
CONSIGNMENT, 

distinguished  from  sale,  3. 

CONTRACT  OF  SALE, 

formation  of,  at  common  law,  1 
under  statute  of  frauds,  35. 
see  "Sale." 

CONVERSION, 

action  for,  by  buyer,  where  property  has  passed,  see  "Action.** 

CREDIT, 

sale  on,  presumption  against,  84,  178,  200. 
effect  of  on  seller's  lien,  205,  207. 
expiration  of  credit,  as  reviving  seller's  lien,  207. 
effect  of,  in  action  for  price,  234. 

CREDITOR. 

when  sale  voidable  for  fraud  on,  124. 
who  is,  127. 

how  far  delivery  essential  to  transfer  property  against,  128. 
CROPS, 

whether  sale  of  within  statute  of  frauds,  43,  4S. 

D 

DAMAGES, 

measure  of,  In  action  for  nonacceptance,  231,  232. 
in  action  for  price,  233. 
in  action  for  nondelivery,  235. 

where  there  is  no  market  price,  237. 


332  INDEX. 

[The  figures  refer  to  pagea] 

DAMAGES— Continued, 

special  damages,  237. 

communication  of  special  circumstances,  239. 
In  action  for  conversion,  241. 
In  action  for  breach  of  warranty,  243,  248. 

right  of  buyer  to  plead  breach  of  warranty  In  defense,  recoupment, 

245. 
special  damages,  249. 

DAYS, 

when  certain  number  allowed  for  delivery,  how  counted,  186i, 

DELIVERY, 

meaning  of,  179. 

in  performance  of  contract,  179. 

delivery  and  payment  as  concurrent  conditions,  178. 

constructive  delivery,  180. 

delivery  by  agreement  or  attornment,  180, 

symbolical  delivery,  18L 

by  delivery  of  key,  181. 

place  and  time  of  delivery,  182. 

seller  not  bound  to  send  goods,  183. 

delivery  of  wrong  quantity,  187. 

delivery  of  too  much,  188. 

delivery  of  goods  mixed  with  other  seeds,  189. 

delivery  of  too  little,  189. 

delivery  by  installments,  192. 

delivery  to  carrier,  195. 

duty  to  Insure  safe  arrival,  196^ 

right  of  buyer  to  examine  on,  197. 
not  essential  to  transfer  of  property,  83. 
on  condition  of  Immediate  payment,  84. 
conditional  sale  accompanied  by,  89. 
to  carrier,  effect  of  In  transferring  property,  97,  99. 

how  far  essential  to  transfer  of  property  against  creditors  and  purchas- 
ers, 128. 

what  constitutes,  131. 
in  termination  of  seller's  lien,  210. 

delivery  by  attornment,  210. 

delivery  to  carrier,  211. 

delivery  of  part,  213. 
by  carrier  as  terminating  right  of  stoppage  In  transitu,  22Ql 
under  statute  of  frauds,  see  "Statute  of  Frauds." 
damages  In  action  for  nondelivery,  235. 


INDEX.  353 

[The  figures  refer  to  pages.] 

DELIVERY  ORDER, 

transfer  of,  does  not  divest  seller's  lien,  211. 
eflFect  of  transfer  of  under  factors'  acts,  19. 

DESCRIPTION, 

sale  by,  155,  171,  242. 

DESTRUCTION  OF  THING  SOLD, 
before  sale,  23. 

after  contract  to  sell,  but  before  property  has  passed,  160. 
after  property  has  passed,  161. 

DETERIORATION, 

risk  of  in  transitu,  197. 

DISPOSAL, 

reservation  of  right  of,  see  "Property,  Transfer  of." 

DIVISIBLE  CONTRACT, 

where  consideration  is  divisible,  and  buyer,  having  prepaid  price,  accepts 

delivery  of  part,  111. 
where  part  of  the  consideration  is  illegal,  148. 
delivery  by  installments,  192. 

DOCK  WARRANT, 

transfer  of,  does  not  constitute  delivery,  181. 
transfer  of,  does  not  divest  seller's  lien,  211. 
under  factors'  acts,  19. 

DOCUMENT  OP  TITLE, 
common-law  effect  of,  181. 
imder  factors'  acts,  19. 

DRUNKEN  MEN, 

capacity  to  buy  and  sell,  12. 
contracts  for  necessaries,  6,  14. 


E 


EARNEST, 

see  "Statute  of  Frauds. 


ELEVATOR  GASES,  4,  96. 

ENTIRE  CONTRACT, 

where  contract  is  entire,  buyer  may  reject  partial  performance,  110. 

see  "Divisible  Contract." 

EQUITABLE  ASSIGNMENT,  25. 

ESTOPPEL, 

against  owner  where  goods  sold  by  another,  22. 
termination  of  seller's  lien  by,  211. 


334  INDEX. 

[The  fibres  refer  to  pages.] 

EVIDENCE, 

parol,  to  vary  contract  In  writing,  67. 

to  show  that  writing  Is  not  note  or  memorandum,  within  statute  of 

frauds,  72. 
as  to  subsequent  agreement  to  modify  original  contract,  72. 

EXAMINATION, 

buyer's  rigbt  of,  197. 

In  sale  by  sample,  175. 

effect  of  on  rule  of  caveat  emptor,  170, 

EXCHANGE, 

distinguished  from  sale,  4. 

EXECUTED  CONTRACT  OF  SALB, 
see  "Sale." 

EXECUTION, 

sale  on,  by  sheriff,  18. 

EXECUTORY  CONTRACT  OF  SALE, 
see  "Sale." 


FACTOR, 

payment  to,  203. 

FACTORS*  ACTS,  16,  19. 

FAILURE  OF  CONSIDERATION, 

see  "Consideration." 

FALSE  REPRESENTATION, 
see  "Fraud." 

FITNESS  FOR  PURPOSE, 

warranty  of,  see  "Warranties.'* 

FIXTURES, 

removable,  not  within  statute  of  frauds,  48. 

sale  of  chattel  Intended  tor  fixture,  see  "Statute  of  FraadM.** 

FOOD, 

see  "Provisions." 

FORM, 

of  contract  of  sale,  27,  31. 

FRAUD, 

effect  of  on  contract,  111,  119. 
characteristics.  111. 


iin)£x.  836 

[The  figures  refer  to  pages.] 

FRAUD— Continued. 

action  for  deceit  a  test,  112. 
Is  a  false  representation,  112. 
representation  must  be  of  fact,  113. 

not  matter  of  opinion,  113. 

not  matter  of  intention.  114. 
Intention  not  to  pay,  114. 

not  matter  of  law,  115. 
representation  must  be  made  with  knowledge  of  its  falsity,  or  in  reckless 
disregard  of  the  truth,  116. 

motive  immaterial,  116. 
representation  must  have  been  made  with  intention  that  It  should  be 

acted  on,  117. 
representation  must  be  material,  and  must  Induce  sale,  117. 
election  to  affirm  or  rescind  for,  119. 

affirmance  or  rescission  must  be  in  toto,  119. 

affirmance,  how  effected,  120. 

rescission,  how  effected,  121. 

party  rescinding  must  make  restitution,  119,  121. 

bona  fide  purchasers  from  fraudulent  buyer,  122. 

fraudulent  impersonation,  123. 

rescission  must  be  within  a  reasonable  time,  124. 
on  creditors,  124. 

mutual  Intent  to  defraud,  125. 

fraud  a  question  of  fact,  126. 

effect  of  retention  of  possession,  12QL 

who  are  creditors,  127. 

effect  of  fraud,  128. 

FRAUDS,  STATUTE  OP, 

see  "Statute  of  Frauds." 

FRAUDULENT  IMPERSONATION,  123. 

FREIGHT, 

effect  of,  lien  for,  on  right  of  stoppage  in  transitu,  222. 

FRUCTUS  INDUSTRIALES, 
see  "Statute  of  Frauds." 

FRUCTUS  NATURALE3, 
see  "Statute  of  Frauds.** 

FUTURES,  SALE  OP, 
see  "Illegality." 


a^Q  INDEX. 

[The  flgnres  refer  to  pages.] 


GIFT, 

distinguished  from  sale,  4. 

GOODS,  WARES,  AND  MERCHANDISD, 
what  are,  see  "Statute  of  Frauds." 

GROWING  CROPS, 
see  "Crops." 


HOUR, 

of  delivery,  188. 

I 

ILLEGALITY, 
In  general,  133. 
■ales  prohibited  by  common  law,  184. 

sale  of  thing  contrary  to  good  morals,  134. 

sale  of  innocent  thing  for  unlawful  purpose,  134. 
sales  prohibited   by  public  policy,   187. 

sale  of  office,  137. 

sale  of  pension,  138. 

sale  of  salary  of  public  office,  138. 

contracts  in  restraint  of  trade,  ISSi 

sale  of  lawsuit,  139. 
•ales  prohibited  by  statute,  139. 

statutes  imposing  a  penalty,  140. 

statutes  regulating  trade,  141. 

statutes  regulating  sale  of  Intoxicating  liquor,  141. 

statutes  prohibiting  Sunday  sales,  142. 

ratification  of  Sunday  sales,  142. 

statutes  prohibiting  wagering  contracts,  143. 

sale  of  futures,  144. 
•fleet  of,  145. 

disaffirmance  before  execution  of  illegal  purjwse,  147. 

separable  contracts,  148. 
conflict  of  laws,   149. 

IMPOSSIBILITY  OF  PERFORMANCH, 
in  general  no  excuse,  160. 
from  destruction  of  thing  sold  before  sale,  28. 
after  contract  to  sell,  but  before  property  has  passed,  160l 
after  property  has  passed,  161. 


INDEX.  837 

[The  figures  refer  to  pages.] 

INCORPOREAL  PROPERTY, 

whether  goods,  wares,  and  merchandise,  within  statute  of  frauds,  44. 
INFANTS, 

capacity  of  to  buy  and  sell,  8, 

ratification  by,  8. 

contracts  for  necessaries,  6,  & 

INSOLVENCY, 

meaning  of,  216. 

seller's  lien  when  buyer  insolvent,  205,  208. 

right  of  stoppage  in  transitu  when  buyer  is  insolyent,  213. 

INSPECTION, 

buyer's  right  of,   see  "Examination." 

INSTALLMENTS. 

where  chattel  is  to  be  paid  for  in,  when  property  passes,  103. 
delivery  by,  192. 

INTOXICATING  LIQUOR, 
see  "Illegality." 

J 

JUS  DISPONENDI, 

reservation  of,  lOS, 

K 

KEY, 

delivery  of  goods  by  giving,  181. 

L 

LAND, 

interest  In,  under  statute  of  frauds,  40i. 
LAWSUITS, 

sale  of,  see  "Illegality.'^ 
LICENSE  TO  SEIZE,  24. 

LIEN, 

see  "Seller's  Lien." 

LORD  TENTERDEN'S  ACT,  37. 

LUNATICS, 

capacity  to  buy  and  sell,  12. 
contracts  for  necessaries,  6,  14. 

M 

MARKET  OVERT, 

rules  as  to  sale  in,  16,  18. 

SALES— 23 


338  INDEX. 

[The  figures  refer  to  pages.] 

MARKET  PRICE. 

when  measure  of  damages  for  nonacceptance,  231, 
when  measure  of  damages  for  nondelivery,  235. 

MARRIED  WOMEN, 

capacity  to  buy  and  sell,  14. 

MASTER  OF  SHIP, 
sale  by,  18. 

MEASURE  OF  DAMAGES, 
see  "Damages." 

MEMORANDUM  IN  WRITING, 
see  "Statute  of  Frauds." 

MERCHANTABLENESS, 

warranty  of,  see  "Warranties.' 

MISTAKE. 

effect  of  on   contract,   108. 
right  to  repudiate  contract  for,  lOS, 
see  "Mutual  Assent." 

"MONTH," 

meaning  of,  188. 

"MORE  OR  LESS," 

meaning  of,  see  "Performance  of  Oontraxrt.'" 

MUTUAL  ASSENT, 

property  transferred  by,  27. 
effect  of  mistalie,  28. 

as  to  parties,  28. 

as   to   thing  sold,  29. 

as  to  price,  30. 

must  go  to  root  of  the  contract,  30. 
sale  by  suit,  31. 

whether  contract  of  sale  a  question  of  Intention,  S2. 
efCect  of  fraud,  see  "Fraud." 
to  appropriation  of  goods  to  contract,  98. 

N 
NECESSARIES, 

see  "Infants";    "Lunatics";    "Drunken  Men.** 

NEGOTIABLE  INSTRUMENTS. 

bona  fide  purchasers  of,  16,  18i. 
see  "Bills  and  Notes." 
NOTE  OR  MEMORANDUM, 

see  "Statute  of  Frauds."* 


INDEX.  839 

[The  figures  refer  to  pages.] 


O 

sale  oa,  8«o  "Illegality." 

OWNER, 

as  a  rule  im  one  but  or/ner  can  sell,  10. 


PARTIES, 

capacity  to  buy  and  sell,  6. 

see  "Infants";    Lunatics";    "Drunken  Men.** 
who  may  sell,  16. 
effect  of  mistake  as  to.  28. 

PART  PAYMENT. 

see  "Statute  of  Frauds." 

"PARTY  TO  BE  CHARGED," 
under  statute  of  frauds,  74, 

PATENT  DEFECTS,  164. 

PAWN, 

sale  by  pawnee,  18. 

PAYMENT, 

not  essential  to  transfer  of  property,  83. 

presumption  against  credit,  84,  178,  200. 

duty  of  buyer  to  pay,  178,  201. 

payment  and  delivery  as  concurrent  conditions,  178,  201. 

payment   in   cash,    200,   202. 

tender  of  payment,   201. 

payment  by  negotiable  security,  conditional  payment,  202. 

payment  to  agent,  203. 

part  payment  under  statute  of  frauds,  see  "Statute  of  Frauds.* 

PERFORMANCE  OF  CONTRACT, 
duties  of  seller  and  buyer,  178. 

delivery  and  payment  as  concurrent  conditions,  178. 
meaning  of  delivery,   179. 

constructive  delivery,  delivery  by  agreement,   180. 
symbolical  delivery,   181. 
place  and  time  of  delivery,  in  general,  182. 

seller  not  bound  to  send  goods,  183. 

place  of  delivery,  183. 

time  of  delivery,  185. 

reasonable  time,  185. 

when  time  is  fixed,  ISO. 


340  INDEX. 

[The  flyiires  refer  to  pages.] 

PERFORMANCE  OF  CONTRACT— ConHnuod, 
delivery  of  wrong  quantity,  In  general,  187. 

delivery  of  too  much,  188. 

delivery  of  goods  mixed  with  other  goods,  189. 

delivery  of  too  little,  189. 

meaning  of  "more  or  less,"  "about,"  191. 
delivery  by  installments,  192. 
delivery  to  carrier,  195. 

duty  to  insure  safe  arrival,  196. 
buyer's  right  of  examination,  197. 
acceptance,    tn   general,    198. 

duty  to  accept,  198. 

meaning  of  "acceptance,"  199, 

express  acceptance,   199. 

Implied    acceptance,    199, 

acts   of   ownership,    199, 

failure  to  reject,  200. 
payment,   in  general,   200. 

duty  to  pay,  201. 

payment  by  negotiable  security,  conditional  payment,  202. 

payment    to    agent,    203. 

PLEDGE, 

distinguished  from  sale,  8. 

PORTION  OF  MASS, 
sale  of,  94. 

POSSESSION, 

retention  of  as  evidence  of  fraud  on  creditors,  123. 

POTENTIAL  EXISTENCE, 
see  "Thing  Sold." 

POWER, 

sale  under,  16,  18. 

PRICE, 

In  general,  82. 

mistake  as  to,  30. 

what  is  a  contract  for  price  or  value  of  £10,  see  "Statute  of  Frauda." 

statement  of  in  note  or  memorandum,  sea  "Statute  of  Frauds." 

action  for,  233. 

PROMISSORY  NOTE, 
see  "Bills  and  Notes." 


INDEX.  34 J 

[The  flgiires  refer  to  pages.] 

PROPERnrr, 

general  distinguished  from  special,  3. 

distinguished  from  right  to  possession,  3. 

effect  of  contract  in  transferring,  in  general,  82. 

PROPERTY,  TRANSFER  OF, 

where  goods  are  specific,  unconditional  sale,  83. 

when  seller  Is  to  put  goods  Into  deliverable  state,  85,  88, 

when  price  is  to  be  ascertained,  85,  87. 

conditional  sale,  accompanied  by  delivery,  89. 

sale  on  trial  or  approval,  91. 

sale  or  return,  91. 
where  contract  is  for  sale  of  unascertained  goods,  94. 

when  goods  are  part  of  specific  stock,  94. 

elevator  cases,  9G. 
subsequent  appropriation,  in  general,  97. 

how  effected,  97,  98, 

by  act  of  seller,  98. 

by  delivery  to  carrier,  99. 

other  forms  of  appropriation  by  act  of  seller,  101, 

seller  must  act  In  conformity  with  authority,  102. 

by  act  of  buyer,  102. 

chattel  made  to  order,  103. 

chattel  to  be  paid  for  In  installments  as  work  progresses,  103. 

reservation  of  right  of  disposal,  104. 

reservation  of  right  of  disposal  by  bill  of  lading,  104,  105. 

dealing  with  bill  of  lading  to  secure  price,  104,  106. 
how  far  delivery  is  essential  to  transfer  of  property,  against  creditors  and 
purchasers,  128. 

PROVISIONS, 

warranty  In  sale  of,  see  "Warranties." 

PUBLIC  POLICY, 
see  "Illegality." 

PURCHASERS, 

subsequent,  how  far  delivery  essential  to  transfer  property  against,  128. 
see  "Bona  Fide  Purchaser." 

Q 

QUALITY, 

implied  warranty  of,  see  "Warranties.** 

QUANTITY, 

delivery  of  wrong,  see  "Performance  of  Contract.** 


342  INDEX. 

[The  figures  refer  to  pages.] 


B 

RATIFICATION, 
by  Infants,   8. 
by  lunatics,  12. 
by  drunken  men,  13. 
by  married  women,  15. 

of  signature  of  agent  under  statute  of  frauds,  70. 
of  Sunday  sale,  142. 
of  stoppage  in  transitu  by  agent,  215. 

RECEIPT, 

actual,  see  "Statute  of  Frauds." 

REJECTION, 

right  to  reject  for  breach  of  warranty,  bsfore  acceptance,  243. 
after  acceptance,  243. 
see  "Acceptanca" 

REMEDIES, 

of  seller,  against  the  goods,  204i 
seller's  lien,  204. 

see  "Seller's  Lien." 
stoppage  in  transitu,  213. 

see  "Stoppage  in  Transitu." 
right  of  resale,  226. 
for  breach  of  contract,  see  "Action." 
for  mistake,  failure  of  consideration,  and  fraud,  see  ••Rescission.'^ 

RENUNCIATION  OF  CONTRACT,   15& 

RESALE, 

seller's    right   of,   228. 
in    England,   227, 
In  the  United  States,  227, 

RESCISSION, 

right  of,  for  mistake,  108. 

for  failure  of  consideration,  109. 

for  fraud,  111,   119. 

by  consent,  when  buyer  Is  Insolvent,  221. 

stoppage  In  transitu  does  not  rescind  sale,  228. 

whether  seller  may  rescind  for  nonpayment  of  pricsi,  229,  284. 

RESTITUTIO  IN  INTEGRUM,  109,  121. 

RESTRAINT  OF  TRADE, 
see  "Illegality." 


INDEX.        --  343 

[The  figures  refer  to  pages.] 

RETURN, 

sale  or,  91,  92. 

RIGHT  OP  DISPOSAL, 

reservation  of,  see  "Property,  Transfer  ot" 

RISK  OP  LOSS, 

accompanies  transfer  of  property,  84, 
see  "Destruction  of  Thing  Sold." 

s 

SALE, 

defined,  1. 

of  personal  property,  how  effected,  2,  S. 

contract  of,  executed  and  executory,  2,  82. 

executed  and  executory    distinguished, 

elements,  2. 

form  of,  27, 
distinguishing  features  of,  2. 
distinguislaed  from  pledge,  3. 
distinguished  from  gift,  3. 
distinguished  from  exchange  or  barter,  & 
under  power,  16,  18. 
under  voidable  title,  17,  21. 

see  "Praud." 
subject-matter  of,  see  "Thing  Sold.** 
by  suit,  31. 

whether  contract  of,  a  question  of  Intention,  32. 
contract  of,  under  statute  of  frauds,  35. 
on  trial  or  approval,  91. 

SALE  OR  RETURN,  91,  92. 

SAMPLE, 

warranty  in  sale  by,  168,  174. 

right  to  reject  If  bulk  does  not  conform,  175. 

acceptance  and  receipt  of  to  satisfy  statute  of  frauds,  61,  53. 
S  ATI  SP  ACTOR  Y, 

sale  of  goods  to  be,  154. 

SELLER'S  LIEN, 
In  general,   204. 
nature  of,  206. 
extends  only  to  price,  206w 
waiver  of,  205,  207. 

by    giving   credit,    207. 

by  accepting  conditional  payment,  205,  207. 


344  INDEX. 

[The  figures  refer  to  pages.] 

SELLER'S  LIEN— Continued, 
revival  of,  207. 

on  expiration  of  credit,  207. 

on  Insolvency  of  buyer,  208. 
termination   of,   210. 

by  delivery  to  buyer,  210. 

by  delivery  to  carrier,  210. 

effect  of  assent  to  subsale,  211, 

effect  of  delivery  of  part,  213. 

SEPARABLE  CONTRACT, 
see  "Divisible  Contract" 

SEPARATION, 

when  necessary  to  pass  property,  94, 

SHARES, 

whether  within  statute  of  frauds,  44. 

SIGNATURE  OF  PARTY, 
under  statute  of  frauds,  74. 

SOLD  NOTE, 

of  broker,  as  memorandum  under  statute  of  frauds,  78. 

SPECIAL  DAMAGES, 
see  "Damages." 

SPECIFIC  GOODS, 

when  property  passes,  see  "Property,  Transfer  of.* 

SPECIFIC  PERFORMANCE, 

action  by  buyer  to  enforce,  240. 

STATUTE  OF  FRAUDS, 
in  general,  35. 

what  contracts  are  within  statute,  85. 
executed  and  executory  contracts,  37. 

contract  of  sale,  or  contract  for  work,  labor,  and  materials,  English 
rule,  36,  37. 
Massachusetts  rule,  36,  40. 
New   York  rule,  36,  40. 
rule  elsewhere  In  United  States,  42. 
chattel  Intended  for  fixture,  42, 
auction  sales,  43. 
wliat  is  an  interest  in  land,  45. 

what  are  goods,  wares,  and  merchandise,  In  general,  48L 
fructus  naturales  and  fructus  industrlales,  45. 
removable  fixtures,  48. 


INDEX.  345 

[The  figures  refer  to  pages.] 

STATUTE  OF  FRAUDS— Continued, 

what  Is  a  contract  for  price  or  yalue  of  £10,  49. 
acceptance  and  receipt,  In  general,  51. 
of  part,  sample,  53. 
acceptance,  in  general,  53. 
constructive  acceptance,  54. 

whether  acceptance  must  be  in  performance  of  contract,  In  Eng> 
land,  57. 
in  United  States,  59. 
actual  receipt,  In  general,  60. 
by  agreement,  60,  62. 

when  goods  are  In  possession  of  seller,  62. 
when  goods  are  In  possession  of  third  person,  63. 
when  goods  are  In  possession  of  buyer,  64. 
earnest  and  part  payment,  in  general,  64. 
earnest,  65. 
part  payment,   65. 
note  or  memorandum,  in  general,  66. 

difference  between  contract  In  writing  and  note  or  memorandum,  67. 
note  or  memorandum  In  the  nature  of  an  admission,  68. 
what  note  or  memorandum  must  contain,  names  of  parties,  66,  69. 
price,   70. 

subject-matter  and  other  terms,  71. 
parol  evidence  to  show  that  writing  Is  not  a  note  or  memorandum, 

72. 
parol  evidence  as  to  subsequent  agreement  to  modify  original  con- 
tract, 72. 
separate  papers,  73. 
signature  of  party,  74. 
agents  authorized  to  sign,  76. 
who  may  be  agent,  77. 
auctioneer,  77. 
broker,  78. 
effect  of  noncompliance  with  the  statute,  801 

STOCK, 

whether  within  statute  of  frauds,  44. 

STOPPAGE  IN  TRANSITU, 
in  general,  213. 
who  may  exercise  right,  215. 
against  whom  right  may  be  exercised,  216L 
meaning   of    "transit,"   217. 
delivery  on  buyer's  ship,  218. 


346  INDEX. 

[The  figures  refer  to  pages-J 

STOPPAGE  IN  TRANSITU— Continued, 
termination  of  transit,  220. 

delivery  to  buyer,  220. 

delivery  after  bankruptcy,  220. 

delivery  to  agent,   221. 

delivery  by  attomment  of  carrier,  222. 

wrongful  refusal  to  deliver,  223. 
how  right  may  be  defeated,  223. 
how   stoppage  Is  effected,   225. 
effect  of  stoppage,  226. 
duty  of  carrier  when  seller  stops,  226L 

SUBSALB, 

effect  of  by  buyer,  211. 

SUBSEQUENT  APPROPRIATION, 
see  "Property,  Transfer  of,'' 

SUIT. 

sale  by,  31. 

SUNDAY, 

when  day  for  delivery  falls  on,  188. 

SUNDAY  SALES, 
see  "Illegality." 

SUSPENSORY  CONDITIONS,   153. 

T 

TENDER, 

actual,  need  not  be  shown  in  action  on  contract,  170. 
of  payment,  201. 

THING  SOLD, 

in  general,   22,   23. 

sale  of  thing  which  has  ceased  to  exist,  23. 
sale  of  thing  not  yet  in  existence  or  acquired,  24. 
potential    existence,    25. 
wagering    contract,    26. 
sale  of  chance,  26. 
effect  of  mistake  as  to,  29. 

destruction  of,  after  contract  to  sell,  but  before  property  has  passed,  160. 
after  property  has  passed,  161. 
see  "Illegality.** 

TIME. 

stipulations  as  to,  when  of  essence,  154. 
reasonable,  for  delivery,  182,  185. 


[The  figures  refer  to  pageaj 

TITLE. 

implied  warranty  of,   165. 

TRANSFER  OF  PROPERTY, 
see  "Property." 

TRANSIT, 

see  "Stoppage  in  Transitu." 

TRIAL, 

sale  on,  91. 

V 
UNASCERTAINED  GOODS, 

when  property  passes,  see  "Property,  Transfer  of,* 

UNCONDITIONAL  SALE.  8a. 
UNPAID  SELLER. 

rights  against  goods,  204. 

USAGE, 

whether  warranty  implied  from.  108. 

y 

VALUATION, 

agreement  to  sell  ^oodfl  at.  33. 

VOIDABLE  TITLE, 

see  "Fraud"  and  "SaJe." 

TV) 

WAGERING  CONTRACTS,  28,  143. 

WAIVER. 

of  performance  of  condition,  158. 

of  seller's  Hen.  205.  207. 

of  right  of  stoppage  In  transitu,  2231. 

WAREHOUSE  RECEIPT, 

transfer  of,  does  not  constitute  delivery,  181. 

in  some  states  by  statute  put  on  footing  of  bill  of  lading,  211,  note  84. 

WARRANTIES, 
defined.   150. 

distinguished  from  condltionfl^  150. 
In  gMieral,   181. 
express,  162. 

how  created.   162. 

known   defects.    164. 

future   events,    164. 


348  INDEX. 

[The  flguree  refer  to  pages.) 

WARRANTIES— Continued, 

Implied  warranty  of  title,  185. 
none  In  official  sales.  167. 
■when  action  for  breach  accmes,  16T, 
Implied  warranty  of  quality, 
in  general,   167. 
caveat  emptor  the  rule,  168. 
whether  implied  from  usage,  169. 
in  sale  of  specific  chattel,  170. 
In  sale  by  description,  171. 
of  fitness  for  purpose,  171. 
of  merchantableness,  173. 
In  sale  of  provisions,  173. 
In  sale  by  sample,  174. 
that  goods  are  of  seller's  manufacture,  175. 
strictly  a  condition,  175,  242. 
whether  express  excludes  implied  warranty,  1T8L 

WEIGHING  AND  MEASURING, 

when  necessary  to  transfer  property,  85,  87. 

WORK,  LABOR,  AND  MATERIALS, 

contract  for,  as  distinguished  from  contract  of  sale  under  statxite  of 
frauds,  35,  37. 

WRITTEN  CONTRACT, 

distiaguished  from  nota  or  memorandum,  87. 


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THIRD  EDITION:     By  FRANCIS  B.  TIFFANY. 


TABLE    OF    CONTENTS. 


Chapter  I. 

OF  NEOOTTABILITU  SO  FAR  AS  IT  RE- 
LATES TO  BILDS  AND  NOTES  :  Cover- 
ing the  origin,  puriiose,  and  indicia  of  nego- 
tiability, distinction  between  negotiability 
and  assignability,  and  payment  by  negotia- 
ble instrument. 

Chapter  H. 

OP  NEGOTIABLE  BILLS  AND  NOTES, 
AND  THEIR  FORMAL  AND  ESSEN- 
TIAL REQUISITES  :  Covering  definition, 
form,  and  essentials,  the  order,  lie  promise, 
specification  of  parties,  capacity  of  parties, 
delivery,  date,  value  received,  and  days  of 
grace. 

Chapter  III. 

ACCEPTANCE  OF  BILLS  OF  EXCHANGE': 

Covering   the   various   kinds   of  acceptance, 
and  the  rules  relating  thereto. 

Chapter   IV. 

INDORSEMENT  :  Defining  and  explaining  the 
various  kinds  of  indorsements,  and  showing 
their  requisites  and  effect. 

Chapter  V. 

OF  THE  NATFRE  OP  THE  LIABILITIES 
OF  THE  PARTIES  :  Covering  liability  of 
maker,  acceptor,  drawer,  indorser.  rights  and 
liabilities  of  accommodation  and  accommo- 
dated parties,  estoppel  and  waiTanties,  and 
damages  for  breach. 


Chapter  VI. 

TRANSFER  :  Covering  definition,  validity,  and 
various  methods  of  transfer,  and  status  of 
overdue  paper. 


Chapter  VII. 

DEFENSES  AS  AGAINST  PURCHASER 
FOR  VALUE  WITHOUT  NOTICE  :  Cov- 
ering the  subject  generally  and  fully. 


Chapter  VIIL 

THE  PURCHASER  FOR  VALUE  WITH- 
OUT NOTICE:  Explaining  who  is,  and 
discussing  consideration,  good  faith,  notice, 
overdue  paper,  presumption,  and  burden  of 
proof,  etc. 

Chapter  IX. 

OF  PRESENTMENT  AND  NOTICE  OF  DIS- 
HONOR :  Covering  presentment  for  accept- 
ance and  for  payment,  dishonor,  protest,  no- 
tice of  dishonor,  waiver,  etc. 

Chapter  X. 

CHECKS  :  Covering  generally  the  law  relating 
to  checks. 

APPENDIX:  The  Negotiable  Instruments 
Law. 


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Author  of  a  '< Handbook  of  the  Law  of  Contracts." 


SECOND  EDITION:     By  FRANCIS  B.  TIFFANY. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

DEFINITION  OF  CRIME :  The  nature  of  crime 
and  ground  of  punishment. 

CHAPTER  II. 

CRIMINAL  LAW:  How  the  criminal  law  is  pre- 
scribed; the  common  law:  statutes,  and  the 
powers  of  state  and  federal  legislatures. 

CHAPTER  III. 

CLASSIFICATION  OP  CEIMES :  As  treason,  fel- 
onies, misdemeanors,  etc. ;  merger  of  offenses. 

CHAPTER  IV. 

THE  MENTAL  ELEMENT  IN  CRIME:  Con- 
sidering the  will,  intention,  motive,  and  crim- 
inal intention  or  malice. 

CHAPTER  V. 

PERSONS  CAPABLE  OF  COMMITTING  CRIME: 
Covering  also  exemption  from  responsibility, 
and  discussing  infancy,  insanity,  drunkenness, 
ignorance  or  mistake  of  law  or  of  fact,  provo- 
cation, necessity  and  compulsion,  married  wo- 
men and  corporations. 

CHAPTER  VI. 

PARTIES  CONCERNED:  Covering  effect  of 
joining  in  criminal  purpose,  principles  in  first 
and  second  degrees,  accessories  before  and 
after  the  fact,  terms  "aider  and  abettor"  and 
"accomplice. " 

CHAPTER  VII. 

THE  OVERT  ACT:  Covering  also  attempts,  so- 
licitation and  conspiracy. 

CHAPTER  VIII. 

OFFENSES  AGAINST  THE  PERSON:  Cover- 
ing homicide,  mui-der,  and  manslaughter,  with 
consideration  of  the  different  degrees,  acci- 
dent, self-defense,  etc. 

CHAPTER  IX. 

OFFENSES  AGAINST  THE  PERSON  (Contin- 
ued) :  Covering  abortion,  mayhem,  rape,  sod- 
omy, seductioD,  assaults,  false  imprisonment, 
kidnapping,  abduction. 


CHAPTER  X. 

OFFENSES  AGAINST  THE  HABITATION: 
Covering  arson  and  burglary. 

CHAPTER  XI. 

OFFENSES  AGAINST  PROPERTY:  Covering 
larceny,  embezzlement,  cheating  at  common 
law  and  by  false  pretenses,  robbery,  receiving 
stolen  goods,  malicious  mischief,  forgery,  etc. 

CHAPTER  XII. 

OFFENSES  AGAINST  THE  PUBLIC  HEALTH, 
MORALS,  ETC. :  Covering  nuisances  in  gen- 
eral, bigamy,  polygamy,  adultery,  fornication, 
lewdness,  etc. 

CHAPTER  XIIL 

OFFENSES  AGAINST  PUBLIC  JUSTICE  AND 
AUTHORITY:  Covering  barretry,  obstruct- 
ing justice,  embracery,  prison  breach,  mispri- 
sion of  felony,  compounding  crime,  perjury, 
bribery,  misconduct  in  oflflce,  etc. 

CHAPTER  XIV. 

OFFENSES  AGAINST  THE  PUBLIC  PEACE 

Covering  dueling,  unlawful  assembly,  riot, 
affray,  forcible  entry  and  detainer,  libels  on 
private  persons,  etc. 

CHAPTER  XV. 

OFFENSES  AGAINST  THE  GOVERNMENT: 
Covering  treason  and  misprision  of  treason. 

CHAPTER  XVI. 

OFFENSES  AGAINST  THE  LAW  OF  NA- 
TIONS:    As  piracy. 

<5hapter  XVII. 

JURISDICTION:  Covering  territorial  limits  of 
states  and  United  States,  jurisdiction  as  deter- 
mined by  locality,  federal  courts  and  the  com- 
mon law,  jurisdiction  conferred  by  congress, 
persons  subject  to  our  laws,  eta 

CHAPTER  XVIII. 

FORMER  JEOPARDY:     In  generaL 


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Author  of  a  "  Handbook  of  Criminal  Law." 


CHAPTER  I. 

CONTRACT  IN  GENERAL:  Covering  its  defi- 
nition, nature,  and  requisites,  and  discussing 
agreement,  obligation,  promise,  void,  voidable, 
and  unenforceable  agreements,  and  the  essen- 
tials of  contract,  etc. 

CHAPTER  II. 

OFFER  AND  ACCEPTANCE:  Covering  im- 
plied contracts,  necessity  for  communication 
and  acceptance,  character,  mode,  place,  time, 
and  effect  of  acceptance,  revocation,  and  lapse 
of  offer,  etc. 

CHAPTER  III. 

CLASSIFICATION  OF  CONTRACTS:  Cover- 
ing contracts  of  record  and  contracts  under 
seaV  and  their  characteristics. 

CHAPTER  IV. 

REQUIREMENT  OF  WRITING:  Covering  also 
statute  of  frauds,  and  discussing  promise  b3' 
executor,  promise  to  answer  for  another, 
agreements  in  consideration  of  marriage  and 
in  relation  to  land,  and  agreements  not  to  Le 
performed  within  a  year,  sufficiency  of  memo- 
randum, etc. 

CHAPTER  V. 

CONSIDERATION:  Covering  the  necessity  for 
consideration,  its  adequacy,  reality,  and  legal- 
ity, failure  of  consideration,  etc. 

CHAPTER  VI. 

CAPACITY  OF  PARTIES:  Covering  political 
and  prpfessional  status,  infants,  insane  and 
drunken  persons,  married  women,  and  corpo- 
r>.tions. 


CHAPTER  Vn. 

REALITY  OF  CONSENT:  Covering  mistake, 
misrepresentation,  fraud,  duress,  and  undue 
influence. 

CHAPTER  VIII. 

LEGALITY  OF  OBJECT:  Covering  unlawful 
agreements  in  general,  agreements  in  viola- 
tion of  positive  law  and  those  contrary  to  pub- 
lic policy,  effect  of  illegality,  conflict  of  laws, 
etc. 

CHAPTER  IX. 

OPERATION  OF  CONTRACT:  Covering  the 
limits  of  the  contractual  relation,  assignment 
of  contracts,  whether  by  act  of  parties  or  by 
operation  of  law,  joint  and  several  contracts, 
etc. 

CHAPTER  X. 

INTERPRETATION  OF  CONTRACT:  Cover- 
ing the  rules  relating  to  evidence,  proof  of 
document,  rules  of  construction,  penalties  and 
liquidated  damages,  etc. 

CHAPTER  XI. 

DISCHARGE  OF  CONTRACT:  Covering  dis- 
charge by  agreement,  by  performance,  by 
breach,  by  impossibility  of  performance,  by 
operation  of  law,  etc.,  and  remedies  on  breach 
of  contract. 

CHAPTER  XII. 

AGENCY:  Covering  the  creation  of  the  relation, 
its  effect  and  determination,  the  capacity, 
rights,  and  liabilities  of  the  parties,  etc. 

CHAPTER  XIII. 

QUASI  CONTRACT:  Covering  obligations  cre- 
ated by  law  upon  which  an  action  ex  contractu 
will  lie  without  proof  of  contract  in  fact,  in- 
cluding judgments,  obligations  imposed  by 
statute,  acts  of  parties,  etc. 


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SECOND  EDITION. 


TABLE   OF  CONTENTS. 


Chapter  I. 

FORMS  OP  ACTION :  Covering  the  nature  and 
classification  of  actions,  real,  personal,  and 
mixed  actions,  assumpsit,  special  and  general, 
debt,  covenant,  account  or  account  rendered. 

Chapter   II. 

FORMS  OF  ACTION  (Continued):  Covering 
trespass,  trover,  case,  detinue,  replevin,  eject- 
ment, writ  of  entry,  forcible  entry  and  detain- 
er, etc 

Chapter  III. 

THE  PARTIES  TO  ACTIONS:  Covering  actions 
in  form  ex  contractu  and  ex  delicto,  and  the 
consequences  of  misjoinder  or  nonjoinder  of 
parties  plaintiff  or  defendant. 

Chapter  IV. 

THE  PROCEEDINGS  IN  AN  ACTION:  Cover- 
ing process,  the  summons,  writ  of  attachment, 
appearance,  the  declaration,  demurrer,  and  va- 
rious pleas,  amendments,  etc.,  the  verdict,  and 
proceedings  after  the  verdict,  the  judgment, 
and  proceedings  thereafter  to  the  writ  of  exe- 
cution. 

Chapter  V. 

THE  DECLARATION:  Statement  of  cause  of 
action  In  general;  form  of  declaration;  es- 
sential averments  of  declaration  in  special  as- 
sumpsit or  on  common  counts,  in  debt,  cove- 
nant, account,  case,  detinue,  trover,  trespass, 
replevin,  ejectment,  and  trespass  for  mesne 
profits  after  ejectment. 

Chapter  VI. 

THE  PRODUCTION  OF  THE  ISSUE:  Discuss- 
ing the  rules,  and  covering  the  demurrer,  the 
pleadings,  the  traverse,  forms  of  the  general 
issue  and  of  the  special  traverse,  protesta- 
tions, exceptions,  issues  in  fact  and  law,  etc. 


Chapter  VH. 

MATERIALITY  IN  PLEADING:  Covering  the 
general  rule,  variance,  limitation  of  traverse, 
etc. 

Chapter  VIH. 

SINGLENESS  OR  UNITY  IN  PLEADING:  Cov- 
ering the  rules  in  general,  duplicity,  immate- 
rial matter,  inducement,  protestation,  conse- 
quences of  duplicity  and  of  misjoinder,  plea 
and  demurrer,  etc 

Chapter   IX. 

CERTAINTY    IN    PLEADING:     Covering   the 

venue,  time,  quantity,  quality,  and  value, 
names  of  persons,  showing  title  and  author- 
ity, with  subordinate  rules,  and  special  re- 
quirements in  different  stages. 

Chapter  X. 

CONSISTENCY  AND  SIMPLICITY  IN  PLEAD- 
ING :  Covering  insensibility,  repugnancy,  am- 
biguity, argumentative  pleadings,  pleadings 
in  alternative,  positive  statements,  legal  effect, 
conformance  to  precedent,  commencement  and 
conclusion. 

Chapter   XI. 

DIRECTNESS  AND  BREVITY  IN  PLEADING: 
Covering  the  rules  generally,  departure,  pleas 
amounting  to  general  issue,  surplusage,  etc 

Chapter  XII. 

MISCELLANEOUS  RULES:  Covering  con 
formance  to  process,  alleging  damages  and 
production  of  suit,  order  of  pleading,  defense, 
plea  in  abatement,  dilatory  pleaa,  etc 

APPENDIX:    Forma. 


This  book  embodies  such  of  the  rules  and  principles  of  Common-Law  Pleading  as  are  still 
recognized  and  applied  in  this  country.  A  knowledge  of  the  common-law  system  is  of  advantage,  if 
indeed,  it  is  not  essential,  to  a  thorough  understanding  of  both  code  and  equity  pleading. 

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Author  of  Black's  Law  Dictionary,  Treatises 
on  Judgments,  Tax  Titles,  etc. 


TABLE     OF     CONTENTS. 


Chapter  I. 

DEFINITIONS  AND  GENERAL  PRINCIPLES: 

Considering  the  menning  of  "Constitutional" 
and  "Unconstitutional;  "  written  and  unwrit- 
ten constitutions,  bills  of  rights,  right  of  revo- 
lution, political  and  personal  responsibilities, 
etc. 

Chapter  II. 

THE  UNITED  STATES  AND  THE  STATES: 
Considering  the  nature  of  the  American 
Union,  sovereignty  and  rights  of  the  states 
and  of  the  people,  form  of  government,  the 
Federal  Constitution,  etc 

Chapter   HI. 

ESTABLISHMENT  AND  AMENDMENT  OF 
CONSTITUTIONS:  Containing  an  historical 
introduction,  and  considering  the  establish- 
ment and  amendment  of  the  Federal  Uonstitu- 
tiou  and  of  State  Constitutions. 

Chapter   IV. 

CONSTRUCTION  AND  INTERPRETATION  OP 
CONSTITUTIONS:  Considering  the  office 
and  duty  of  the  judiciary  in  this  direction. 

Chapter   V. 

THE  THREE  DEPARTMENTS  OP  GOVERN- 
MENT: Considering  the  division,  limitations 
on  the  departments,  political  and  judicial 
Questions,  etc. 

Chapter   VI. 

THE  FEDERAL  EXECUTIVE:  Considering 
the  election,  qualifications,  impeachment, 
compensation  and  independence  of  the  Presi- 
dent, his  oath  of  office,  veto  power,  pardoning 
and  military  power,  and  treaty-making  povver ; 
vacancy  in  offlcej  the  cabinet,  appointments 
to  office,  presidential  messages,  diplomatic  re- 
lations, authority  to  convene  and  adjourn  con- 
gress, execute  the  laws,  etc. 

Chapter   VIL 

FEDERAL  JURISDICTION:  Considering  the 
jurisdiction,  powers  and  procedure  of  Federal 
courts,  removal  of  causes,  the  United  States 
and  the  states  as  parties,  etc. 

Chapter   VIII. 

THE  POWERS  OF  CONGRESS:  Considering 
the  constitution,  organization  and  government 
of  congress,  its  powers,  and  the  limitations 
thereon. 

Chapter   IX. 

INTERSTATB  LAW,  as  determined  by  the  Con- 
stitution: Considering  its  general  principles, 
the  privileges  of  citizens,  interstate  exti-adi- 
tioD,  public  acts  and  judicial  proceedings,  etc. 

Chapter   X. 

REPUBLICAN  GOVERNMENT  GUARANTIED. 


Chapter   XI. 

EXECUTIVE  PO  V\  EK  IN  THE  STATES. 
Chapter   XII. 

JUDICIAL  POWERS  IN  THE  STATES:  Con- 
sidering the  system  of  courts,  judges,  juris- 
diction, process  and  procedure. 

Chapter   XIII. 

LEGISLATIVE  POWER  IN  THE  STATES :  Con- 
sidering the  organization  and  government  of 
legislature,  limitation  and  delegation  of  legis- 
lative powers,  enactment  of  laws,  etc. 

Chapter   XIV. 

THE  POLICE  POWER:  Considering  the  police 
power  as  vested  in  congress  and  iu  the  states, 
and  its  scope  and  limitations. 

Chapter  XV. 

THE  POWER  OF  TAXATION:  Considering 
the  purposes  of  taxation,  indepeiulcnce  of 
Federal  and  State  governments,  limitations  on 
power,  taxation  and  representation,  etc 

Chapter  XVI. 

THE  RIGHT  OF  EMINENT  DOMAIN:  Defini- 
tion and  nature  of  the  power,  constitutional 
provisions,  authority  to  exercise,  public  pur- 
pose, appropriation  to  new  uses,  etc 

Chapter   XVII. 

MUNICIPAL  CORPORATIONS:  The  nature, 
control,  powers,  officers  and  by-laws  of  mu- 
nicipal corporations,  etc. 

Chapter   XVIII. 

CIVIL  RIGHTS,  AND  THEIR  PROTECTION 
BY  THE  CONSTITUTION:  Considering 
rights  in  general,  liberty,  due  process  of  law, 
vested  rights,  trial  by  jury,  etc. 

Chapter  XIX. 

POLITICAL  AND  PUBLIC  RIGHTS:  Consider- 
ing citizenship,  right  of  suffrage,  freedom  of 
speech,  right  of  assembly  and  petition,  etc 

Chapter  XX. 

CONSTITUTIONAL  GUARANTIES  IN  CRIM- 
INAL CASES:  Considering  trial  by  jury, 
rights  of  accused,  jeopardy,  bail,  ex  post  facto 
laws,  habeas  corpus,  etc. 

Chapter  XXI. 

LAWS  IMPAIRING  THE  OBLIGATION  OF 
CONTRACTS:  Considering  the  obligation 
and  the  impairment  of  the  contract,  power  of 
legislature  to  contract,  remedies  on  contracts, 
etc. 

Chapter   XXII. 

RETROACTIVE  LAWS:  Considering  the  validity 
of  retroactive  statutes,  curative  statutes,  etc 


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TABLE    OF    CONTENTS. 


Cliapter   I. 

NATURE  AND  DEFINITION  OF  EQUITY. 

Chapter  II. 

PRINCIPLES  DEFINING  AND  LIMITING  JU- 
RISDICTION :  Considering  jurisdiction  over 
crimes,  adequate  legal  remedy,  complete  re- 
lief, and  multiplicity  of  suits. 

Chapter   HI. 

THE  MAXIMS  OF  EQUITY:  Definition  and 
classLflcation  of  maxims ;  the  enabling  and  re- 
strictive maxims. 


Chapter   IV. 

THE  DOCTRINES  OP  EQUITY:  Considering 
estoppel,  election,  satisfaction,  performance, 
and  conversion. 

Chapter   V. 

THE  DOCTRINES  OF  EQUITY  (Continued): 
Considering  conflicting  rights  of  purchasers, 
assignees,  notice,  bona  fide  purchasers,  priori- 
ties, etc. 

Chapter   VI. 

THE  DOCTRINES  OF  EQUITY  (Continued): 
Considei-ing  penalties  and  forfeitures,  liqui- 
dated damages. 


Chapter   VII. 

GROUNDS  FOR  EQUITABLE  RELIEF: 
sidering  accident,  mistake,  fraud,  etc. 


Con- 


Chapter   VIII. 

PROPERTY  IN  EQUITY— TRUSTS:  Covering 
definition,  history,  and  classification  of  trusts, 
charitable  trusts,  duties  and  liabilities  of  trus- 
tees, remedies  of  cestui  que  trust,  etc. 

Chapter   IX. 

PROPERTY  IN  EQUITY  —  MORTGAGES, 
LIENS,  AND  ASSIGNMENTS. 

Chapter   X. 

EQUITABLE  REMEDIES:  Covering  accounting, 
contribution,  exoneration,  subrogation,  and 
marshaling. 

Chapter   XI. 

EQUITABLE  REMEDIES  (Continued):  Cov- 
ering partition  and  settlement  of  boundaries. 

Chapter   XII. 

EQUITABLE  REMEDIES  (Continued):  Cov- 
ering specific  performance,  and  considering 
enforceable  contracts,  grounds  for  refusing  re- 
lief, etc. 

Chapter   XIII. 

EQUITABLE  REMEDIES  (Continued);  Cov- 
ering injunctions,  and  considering  their  juris- 
dictional principles,  classes  of  cases  where 
remedy  may  be  used,  etc. 

Chapter   XIV. 

REFORMATION,  CANCELL  A.TION,  AND 
QUIETING  TITLE. 

Chapter   XV. 

ANCILLARY  REMEDIES :  Covering  discovery, 
bills  to  perpetuate  testimony,  interjiieader, 
receivers,  etc. 


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l^an^BooS  of  Contracts." 


TABLE  OF  CONTENTS. 


Chapter   I. 

JURISDICTION:  Coveriug  courts  of  criminal  ju- 
risdiction and  venue. 

Chapter   II. 

APPREHENSION  OF  PERSONS  AND  PROP- 
ERTY :  Covering  arrest  in  general,  warrants, 
extradition,  searches  and  seizures  of  properly, 
and  taking  property  from  prisoner. 

Chapter   III. 

PRELIMINARY  EXAMINATION,  BAIL.  AND 
COMMITMENT:  Covering  right  to  release  on 
bail,  habjas  corpus,  the  recognizance,  release 
of  sureties,  etc. 

Chapter   IV. 

MODE  OF  ACCUSATION:  Covering  the  indict- 
ment and  presentment,  information,  coroner's 
inquisition,  time  of  prosecutiun,  and  nolle 
prosequi,  etc. 

Chapter   V. 

PLEADING  — THE  ACCUSATION:  Covering 
form  of  indictment  in  general,  the  commence- 
ment, and  the  statement  of  offense  and  descrip- 
tion of  defendant. 

Chapter    VI. 

PLEADING  — THE  ACCUSATION  (Continued): 
Covering  allejration  of  intent,  knowledge,  etc. ; 
teqjinical  terms;  second  or  third  offense,  set- 
ting forth  writings;  description  of  property 
and  persons ;  ownership. 

Chapter   VII. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  statement  of  time  and  place. 


Chapter   VIII. 

PLEADING— THE  ACCUSATION  (Continued)  J 
Covering  indictments  on  statutes. 

Chapter   IX. 

PLEADING— THE  ACCUSATION  (Continued) : 
Covering  duplicity,  joinder  of  counts  and  par- 
ties, election,  conclusion  of  indictment,  amend- 
ment, aider  by  verdict,  etc. 

Chapter   X. 

PLEADING  AND  PROOF:  Covering  varianc 
and  conviction  of  minor  and  higher  offense. 

Chapter   XI. 

MOTION  TO  QUASH:  Covering  also  arraign- 
ment, demurrer,  and  pleas  of  defendant. 

Chapter   XII. 

TRIAL  AND  VERDICT:  Covering  time  and  place 
of  trial,  custody  and  presence  of  defendant, 
bill  of  particulars,  the  counsel,  judge  and  jury, 
arguments  and  instructions,  etc. 

Chapter   XIII. 

PROCEEDINGS  AFTER  VERDICT:  Covering 
motion  in  arrest  of  judgment,  sentence,  new 
trial,  writ  of  error,  etc. 

Chapter    XIV. 

EVIDENCE:  Covering  facts  in  issue,  motive, 
res  gestae,  other  crimes,  declarations,  confes- 
sions, character,  burden  of  proof,  witnesses, 
etc. 

Chapter   XV* 

HABEAS  CORPUS. 


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Author  of   "Tiffany  on  Death  by  Wrongful  Act." 


TABLE  OF  CONTENTS. 


Chapter   I. 

FORMATION  OF  THE  CONTRACT:  Covering 
the  capacity  of  parties,  who  may  sell,  the  thing 
sold,  mutual  assent,  form,  and  price. 

Chapter   II. 

FORMATION  OF  THE  CONTRACT  (Continued) : 
Covering  the  statute  of  frauds. 

Chapter   III. 

EFFECT  OP  THE  CONTRACT  IN  PASSING 
THE  PROPERTY:  Covering  sales  of  specific 
chattels, — unconditional  sales,  conditional  sales, 
sale  on  trial  or  approval,  and  sale  or  return. 

Chapter   IV. 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY  (Continued) :  Covering  sales 
of  chattels  not  specific,  appropriation  of  property 
to  the  contract,  reservation  of  right  of  disposal, 
etc. 

Chapter   V. 

MISTAKE,  FAILURE  OF  CONSIDERATION, 
AND  FRAUD :  Showing  the  effect  of  mistake, 
failure  of  consideration,  and  fraud  generally, 
frauds  on  creditors,  the  delivery  necessary  as 
against  creditors  and  purchasers,  etc. 


Chapter    VI. 

ILLEGALITY:  Covering  sales  prohibited  by  the 
common  law,  by  public  policy,  and  by  statute; 
the  effect  of  illegality,  and  the  conflict  of  laws. 


Chapter   VII. 

CONDITIONS  AND  WARRANTIES:  Covering 
conditions  and  war  ranties  generally. 

Chapter    VIII. 

PERFORMANCE:  Covering  fully  delivery,  the 
buyer's  right  of  examination,  acceptance,  and 
payment. 

Chapter   IX. 

RIGHTS  OF  UNPAID  SELLER  AGAINST  THE 
GOODS:  Covering  the  seller's  lien,  stoppage 
in  transitu,  and  the  right  of  resale. 

Chapter   X. 

ACTION  FOR  BREACH  OF  THE   CONTRACT: 

Covering  the  various  remedies  of  the  seller  and 
of  the  buyer. 


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TABLE   OF    CONTENTS. 


INTRODUCTION. 

Covering  the  definition,  source,  and  nature  of  In- 
ternational Law. 

Chapter   I. 
PERSONS  IN  INTERNATIONAL  LAW:     Cov- 
ering states,  their  loss  of  identity,  various  unions 
■  of  states,  de  facto  states,  belligerency  and  recog- 
nition thereof,  and  equality  of  states. 

Chapter   II. 

THE  COMMENCEMENT  OF  STATES— FUNDA- 
MENTAL RIGHTS  AND  DUTIES:  Covering 
the  commencement  and  reco'iiiilion  of  new 
states,  effect  of  change  of  sovereignty,  the  fun- 
damental rights  and  duties  of  states,  etc. 

Chapter   III. 

TERRITORIAL  PROPERTY  OF  A  STATE: 
Covering  modes  of  acquiring  property,  boun- 
daries, territorial  waters,  etc. 

Chapter   IV. 

TERRITORIAL  JURISDICTION:  Covering  ex- 
territoriality, sovereigns  and  diplomatic  agents 
and  their  immunities,  vessels,  right  of  asylum, 
alienage,  responsibility  for  mob  violence,  extra- 
dition, jurisdiction  beyond  state  limits,  etc. 

Chapter   V. 

JURISDICTION  ON  THE  HIGH  SEAS  AND 
UNOCCUPIED  PLACES:  Covering  nature  of 
jurisdiction,  jurisdiction  over  mei-chant  ships, 
piracj',  privateers,  letters  of  marque,  slave 
trade,  etc. 

Chapter   VI. 

THE  AGENTS  OF  A  STATE  IN  INTERNA- 
TIONAL RELATIONS:  Covering  public  diplo- 
matic agents  and  consuls,  and  matters  relating 
to  them. 

Chapter   VII. 

INTERVENTION:  Covering  the  subject  gener- 
ally. 

Chapter   VIII. 

NATIONALITY:  Covering  citizenship,  allegi- 
ance, expatriation,  naturalization,  etc. 

Chapter   IX. 

TREATIES:    Covering  the  subject  generally. 
Chapter   X. 

AMICABLE  SETTLEMENT  OP  DISPUTES: 
Covering  mediation,  arbitration,  retorsion,  re- 
prisals, embargo,  pacific  blockade,  etc. 

Chapter   XI. 

INTERNATIONAL  RELATIONS  IN  WAR: 
Covering  the  subject  of  war  generally,  includ- 
ing the  kinds,  causes,  and  objects  of  war. 

Chapter   XII. 

EFFECTS  OP  WAR— AS  TO  PERSONS:  Cov- 
ering the  relations  of  enemies,  noncombatants, 
privateers,  prisoners  of  war,  and  the  subjects  of 
ransom,  parole,  etc 


Chapter   XIII. 

EFFECTS  OF  WAR  — AS  TO  PROPERTY: 
Covering  contributions,  requisitions,  foraging, 
booty,  ransom,  and  other  questions  in  regard 
to  property. 

Chapter   XIV. 

POSTLIMINIUM :  The  right  and  its  limitations 
defined  and  explained. 

Chapter   XV. 

MILITARY  OCCUPATION:  Covering  the  defi- 
nition, extent,  and  effect  of  occupation,  and  the 
duties  of  an  occupant. 

Chapter   XVI. 

MEANS  OP  CARRYING  ON  HOSTILITIES: 
Covering  the  instruments  and  means  of  war, 
spies,  etc. 

Chapter   XVII. 

ENEMY  CHARACTER:  Covering  enemies  gen- 
erally, domicile,  houses  of  trade,  property  and 
transfer  thereof,  etc. 

Chapter   XVIII. 

NON-HOSTILE  RELATIONS:  Covering  com- 
mercia  belli,  flags  of  truce,  passports,  safe-con- 
ducts, truces  or  armistices,  cartels,  etc. 

Chapter   XIX. 

TERMINATION  OF  WAR:  Covering  the  meth- 
ods of  termination,  uti  possidetis,  treaties  of 
peace,  conquest,  etc. 

Chapter   XX. 

OF  NEUTRALITY  IN  GENERAL:  Neutrality 
defined  and  explained. 

Chapter   XXI. 

THE  LAW  OP  NEUTRALITY  BETWEEN  BEL- 
LIGERENT AND  NEUTRAL  STATES:  Cov- 
ering the  rights,  duties,  and  liabilities  of  neutral 
states. 

Chapter   XXII. 

CONTRABAND :    Covering  the  subject  generally. 

Chapter  XXIII. 
BLOCKADE :     Covering  the  subject  generally. 

Chapter  XXIV. 

VISIT  AND  SEARCH,  AND  RIGHT  OP  AN- 
GARY:   Covering  those  subjects  generally. 

APPENDIX. 

Giving  in  full,  as  in  no  other  single  work,  the  In- 
structions for  the  Government  of  Armies  of  the 
United  States  in  the  Field  (Lieber) ;  Papers  Car- 
ried, or  that  Ought  to  be  Carried,  by  Vessels  in 
Evidence  of  their  Nationality;  The  Declaration 
of  Paris;  The  Declaration  of  St.  Petersburg; 
The  Geneva  Convention  for  the  Amelioration  of 
the  Condition  of  the  Sick  and  Wounded  of  Ar- 
mies in  the  Field;  The  Laws  of  War  on  Land, 
(Recommended  for  Adoption  by  the  Institute  of 
International  I-aw  at  Oxford,  Sept.  9, 1880) ;  and 
The  Brussels  Conference. 


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€H  ^att)  of  €or^0* 

Professor  of  the  Law  of  Torts  in  the  Minnesota  University  Law  School. 


TABLE   OF  CONTENTS. 


PART  I.— IN  GENEBAIi. 
Chapter   I. 

GENERAL  NATURE  OF  TORTS:  Covering  the 
lavF  adjective  and  law  substantive,  distinctions 
between  torts  and  crimes,  common-law  obliga- 
tions and  remedies,  how  and  why  liability  at- 
taches for  torts,  the  mental  element,  connec- 
tion as  cause,  damnum  and  injuria,  common- 
law,  contract  and  statutory  duties,  etc. 

Chapter   II. 

VARIATIONS  IN  THE  NORMAL  RIGHT  TO 
TO  SUE:  Covering  exemptions  based  on 
privilege  of  actor,  as  public  acts  of  states,  of 
judicial  and  executive  officers,  etc.,  and  private 
acts  authorized  by  statute  or  common  law, 
variations  based  on  status  or  conduct  of  plain- 
tiff, etc. 

Chapter  III. 

LIABILITY  FOR  TORTS  COMMITTED  BY  OR 
WITH  OTHERS:  Covering  liability  by  con- 
cert in  action  or  joint  torts,  and  liability  by 
relationship,  as  husband  and  wife,  landlord 
and  tenant,  master  and  servant,  partners,  etc. 

Chapter  IV. 

DISCHARGE  AND  LIMITATION  OF  LIABILI- 
ITY  FOR  TORTS:  Covering  discharge  or 
limitation  by  voluntary  act  of  party  and  by 
operation  of  law. 

Chapter  V. 

REMEDIES:  Covering  statutory  and  common- 
law  remedies,  judicial  and  extrajudicial  reme- 
dies, damages,  etc.  * 

PART  n.— SPECIFIC  WRONGS. 
Chapter  VI. 

WRONGS  AFFECTING  SAFETY  AND  FREE- 
DOM OF  PERSONS:  Covering  false  impris- 
onment, assault  and  battery,  and  the  defenses, 
as  justification  and  mitigation. 


Chapter  VII. 

INJURIES  IN  FAMILY  RELATIONS:  Cover- 
ing the  family  at  common  law,  master  and 
servant,  parent  and  child,  husband  and  wife. 

Chapter  VIII. 

WRONGS  AFFECTING  REPUTATION:  Cover- 
ing libel,  slander,  and  slander  of  title,  together 
with  the  defenses. 

Chapter   IX. 

MALICIOUS  WRONGS:  Covering  deceit,  mali- 
cious prosecution,  abuse  of  process,  interfer- 
ence with  contract,  conspiracy,  etc. 

Chapter  X. 

WRONGS  TO  POSSESSION  AND  PROPERTY: 
Covering  the  nature  of  possession  and  its  ob- 
jects, trespass,  waste,  conversion,  etc. 

Chapter   XI. 

NUISANCE:  Covering  kinds  of  nuisance,  as  pub- 
lic, private,  and  mixed,  continuing  and  legal- 
ized, parties  to  proceedings  against,  remedies, 
etc. 

Chapter  XII. 

NEGLIGENCE:  Covering  the  duty  to  exercise 
care,  what  is  commensurate  care,  common-law, 
contract  and  statutory  duties,  damages,  con- 
tributory negligence,  etc. 

Chapter   XIII.  ^ 

MASTER  AND  SERVANT:  Covering  master's 
liability  to  servant  for  negligence,  master's 
duty  to  servant,  assumption  of  risk  by  serv- 
ant, various  kinds  of  risks,  fellow  servants, 
vice  principals,  etc. 

Chapter   XIV. 

COMMON  CARRIERS:  Covering  the  subject 
generally. 


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•       ••■      V^MIVir^t3tl_l_l_      DI-MOrV,  TISES  ON   CONSTITUTIONAL  LAW,  JUDGMENTS.  ETC. 


TABLE    OF   CONTENTS. 


Chapter  I. 

NATURE  AND  OFFICE  OF  INTERPRE- 
TATION: Covering  defiuition  of  terms,  ob- 
ject of  interpretation,  rules  of  construction, 
and  office  of  judiciary. 

Chapter  II. 

CONSTRUCrriON  OP  CONSTITUTIONS: 
CoTeriug  method  and  rules  of  construction, 
construction  as  a  whole,  common  law  and  pre- 
vious legislation,  retrospective  operatiou,  man- 
datory and  directory  provisions,  preamble  ami 
titles,  extraneous  aids,  schedule,  stare  decisis, 
etc. 

Chapter    III. 

GENERAL  PRINCIPLES  OF  STATUTORY 
CONSTRUCTION:  Covering  literal  and  eq- 
uitable construction,  scope  and  purpose  of  the 
act,  casus  omissus,  implications  in  statutes, 
meaningless  statutes,  errors,  misprints,  sur- 
plusage, interpolation  of  words,   etc. 

Chapter  IV. 

STATUTORY  CONSTRUCTION;  PRE- 
SUMPTIONS: Covering  presumptions  against 
exceeding  limitations  of  legislative  power,  un- 
constitutionality, injustice,  irrepeaiable  laws, 
implied  repeal  of  laws,  etc.,  presumptions  as 
to  public  policy,  as  to  jurisdiction  of  courts, 
etc. 

Chapter   V. 

STATUTORY  CONSTRUCTION;  WORDS 
AND  PHRASES.  Covering  technical  and 
popular  meaning  of  words,  commercial  and 
trade,  general  and  special,  relative  and  qual- 
ifying, and  pei-missive  and  mandatory  terms; 
conjunctive  and  disjunctive  particles,  adopted 
and  re-enacted  statutes,  computation  of  time, 
etc. 

Chapter  VI. 

INTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  constiniction  as  a 
whole,  context,  title,  prciuuble,  interpretation 
clause,  etc. 

Chapter  VII. 

EXTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  admissibility  of  ex- 
trinsic aids,  statutes  in  pari  materia,  con- 
temporary history,  construction  and  usage, 
journals  of  legislature,  opinions  of  legislators, 
etc. 

Chapter    VIII. 

INTERPRETATION  WITH  REFERENCE 
TO  COMMON  LAW:  Covering  statutes  af- 
firming, supplementing,  superseding  or  in 
derogation  of,  common  law. 


Chapter    IX. 

RETROSPECTIVE  INTERPRETATION: 
Covering  definition,  constitutional  considera- 
tions, vested  rights,  remedial  statutes,  and 
statutes  regulating  procedure. 

Chapter    X. 

CONSTRUCTION  OF  PROVISOS,  EXCEP- 
TIONS, AND  SAVING-  CLAUSES:  Cov- 
ering the  subject  generally. 

Chapter    XI. 

STRICT  AND  LIBERAL  CONSTRUCTION: 
Covering  penal  and  remedial  statutes,  stat- 
utes against  common  right,  against  frauds, 
and  of  limitation,  legislative  grants,  revenue 
and  tax  laws,  etc. 

Chapter   XII. 

MANDATORY  AND  DIRECTORY  PROVI- 
SIONS: Definitions  and  rules  covering  the 
subject  generally. 

Chapter   XIII. 

AMENDATORY  AND  AMENDED  ACTS: 
Covering  construction  of  nuiondmonts  and  of 
statute  as  amended,  identification  of  act  to  be 
amended,  amendment  by  way  of  revision,  etc. 

Chapter   XIV. 

CONSTRUCTION  OF  CODES  AND  RE- 
VISED STATUTES:  Covering  construction 
as  a  whole,  reference  to  original  statutes, 
change  of  language,  previous  judicial  construc- 
tion, etc. 

Chapter    XV. 

DECLARATORY  STATUTES:  Covering  defi- 
nition and  construction  in  general. 

Chapter   XVI. 

THE  RULE  OF  STARE  DECISIS  AS  AP- 
PLIED TO  STATUTORY  CONSTRUC- 
TION: Covering  the  general  principle,  re- 
versal of  construction,  federal  courts  follow- 
ing state  decisions,  construction  of  statutes  of 
other  states,  etc. 

Chapter   XVII. 

INTERPRETATION  OF  .JUDICIAL  DECI- 
SIONS AND  THE  DOCTRINE  OF  PREC- 
EDENTS: Co'^ering  the  nature  of  prece- 
dents; dicta;  stare  decisis;  the  force  of  prece- 
dents as  between  different  courts;  the  law  of 
the  case,  etc. 


1    VOLUME. 


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509    PAGES.      $3.75.    DELIVERED. 

St.  Paul,  Minn. 


(t^e  gornfiooft  ^criee.) 


(§  ganbBooft  of 

QBaifmen(0  anb  Camera* 


TABLE    OF    CONTENTS. 


Chapter  I. 

IN  GENERAL:  Covering  definition  and  gen- 
eral principles  common  to  all  bailments; 
classification    of    bailments. 


Chapter  II. 

BAILMENTS    FOR    SOLE    BENEFIT 


OF 


BAILOR:  Covering  depositum  and  man- 
datum,  creation,  rights  and  liabilities  of 
parties,   termination,   etc. 


Chapter   III. 

BAILMENTS  FOR  BAILEE'S  SOLE  BEN- 
EFIT: Commodatum.  creation,  rights  and 
liabilities  of  parties,  termination,  etc. 

Chapter  IV. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
PLEDGES:  Covering  definition  of  plodge, 
creation,  title  of  pledgor,  rights  and  liabil- 
ities of  parties  before  and  after  default,  ter- 
mination, e+c. 

.  Chapter    V. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
HIRING:  Locatio  or  hiring  defined;  estab- 
lishment of  relation;  rights  and  liabilities 
of  parties;  hiring  of  things  for  use;  hire  of 
labor  and  services;  warehousemen;  wharf- 
ingers; safe-deposit  companies;  factors,  etc.; 
termination  of  relation,  etc. 


Chapter  VI. 

INNKEEPERS:  Innkeeper  defined;  who  are 
guests;  commencement  of  relation;  duty 
to  receive  guest;  liability  for  guests'  goods; 
lien;  termination  of  relation;  liability  as 
ordinary  bailee,  etc. 

Chapter  VII. 

CARRIERS  OF  GOODS:  Common  carriers, 
essential  characteristics;  when  liability  at- 
taches; discrimination;  compensation;  lien; 
liability  as  insurers  and  as  ordinary  bailees; 
carriers  of  live  stock;  carriers  of  baggage; 
contracts  and  notices  limiting  liability;  ter- 
mination of  liability;  connecting  carriers, 
etc.;  post-ofEce  department;  private  car- 
riers. 

Chapter    VIII. 

CARRIERS  OF  PASSENGERS:  Who  are 
passengers;  when  liability  attaches;  duty 
to  accept  passengers;  furnishing  equal  ac- 
commodations; ticket  as  evidence  of  pas- 
senger's rights;  right  to  make  regulations; 
injuries  to  p.'issengers;  contracts  limiting 
liability;  termination  of  liability;  ejection, 
from  vehicle:  connecting  carriers,  and  cov- 
ering the  subject  generally. 

Chapter   IX. 

ACTIONS  AGAINST  CARRIERS:  Actions 
against  carriers  of  goods  and  carriers  of 
passengers;  parties;  form  of  action;  plead- 
ing;   evidence;    damages. 


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♦♦(vt** 


Q0g  nrafter  ©enton  ^mit?. 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE   OF   CONTENTS. 


Part  I-ELEMENTARY  JURISPRUDENCE. 

CHAPTER   I. 

NATURE  OF  LAW  AND  THE  VARIOUS  SYSTEMS: 
Moral,  divine,  municipal.  International,  mari- 
time and  martial  law. 

CHAPTE]p,   n. 

GOVERNMENT  AND  ITS  FUNCTIONS:  Covering 
sovereiprnty,  the  state,  the  constitution,  and  the 
forms  and  functions  of  government  generally. 

CHAPTER   m. 

GOVERNMENT  IN  THE  UNITED  STATES:  Its 
general  character,  sovereignty,  distribution  of 
powers,   citizenship,   etc. 

CHAPTER   IV. 

THE  UNWRITTEN  LAW:  The  Roman,  the  Canon 
and  the  Comjnon  law. 

CHAPTER   V. 

EQUITY:  Nature  and  jurisdiction  of  equity;  max- 
ims. 

CHAPTER   VI. 

THE  WRITTEN  LAW:  Relation  to  unwritten  law; 
statutory  law  In  general. 

CHAPTER    VII. 

THE  AUTHORITIES  AND  THEIR  INTERPRETA- 
TION: The  rank  of  authorities,  rules  of  inter- 
pretation,  statutory  construction,   etc. 

CHAPTER   Vni. 

PERSONS  AND  PERSONAL  RIGHTS:  Legal 
rights,  wrongs  and  remedies,  rights  in  rem  and 
In  personam,  status,  personal  security,  liberty, 
property,  constitutional  guaranties,  etc. 

CHAPTER  IX. 

PROPERTY:  Covering,  ownership  and  possession; 
the  Feudal  system;  corporeal  and  incorporeal, 
real  and  personal,   property ;    fixtures,   etc. 

CHAPTER   X. 

CLASSIFICATION  OF  THE  LAW:  SubstanUve 
and  adjective,  public  and  private  law,  etc. 

Part  II— THE  SUBSTANTIVE  LAW. 

CHAPTER    XI. 

CONSTITUTIONAL  AND  ADMINISTRATIVE  LAW: 
Written  and  unwritten  constitutions,  essentials 
and  construction  of  constitutions;  administra- 
tive law,  etc. 

CHAPTER    XII. 

CRIMINAL  LAW:  Covering  its  general  nature, 
criminal  capacity,  classification  of  crimes,  pun- 
ishment,   etc. 

CHAPTER   XIII. 

THE  LAW  OF  DOMESTIC  RELATIONS:  Cover- 
ing marriage  and  its  incidents,  parent  and  child, 
gxiaxdian  and  ward,  master  and  servant,  etc. 


CHAPTER   XrV. 

CORPOREAL  AND  INCORPOREAL  HEREDITA- 
MENTS:   Covering   the   subject   generally. 

CHAPTER    XV. 

ESTATES  IN  REAL  PROPERTY:  Classification, 
estates  In  possession  and  in  expectancy;  free- 
holds and  estates  less  than  freehold;  estates  in 
severalty,  in  joint  tenancy  and  in  common;  ab- 
solute and  conditional,  legal  and  equitable  es- 
tates ;     etc. 

CHAPTER    XVI. 

TITLES  TO  REAL  PROPERTY:  Covering  title  by 
descent  and  by  purchase,  classiflcation  and 
forms  of  deeds,  etc 

CHAPTER    XVn. 

PERSONAL  PROPERTY:  Real  and  personal  chat- 
tels, ownei'sliip  of  personal  property,  acquisition 
of  title,   etc. 

CHAPTER    XVIH. 

SUCCESSION  AFTER  DEATH:  Testate  and  Intes- 
tate succession,  escheat,  executors  and  adminis- 
trators,   etc. 

CHAPTER    XIX. 

CONTRACTS:  Definition,  validity  and  classification 
of  contracts,  quasi  contracts,  etc 

CHAPTER    XX. 

SPECIAL  CONTRACTS:  Covering  contracts  of 
sale,  bailments,  negotiable  contracts,  suretyship, 
insurance,    etc 

CHAPTER    XXI. 

AGENCY:    Covering  the  subject  generally. 

CHAPTER    XXII. 

COMMERCIAL  ASSOCIATIONS:  Covering  part- 
nerships, joint  stock  companies,  voluntary  asso- 
ciations,  corporations,    etc 

CHAPTER    XXni. 

TORTS:  Covering  the  nature  and  elements  of  torts, 
proximate  and  remote  cause  and  specific  torts. 

Part  III— THE  ADJECTIVE  LAW. 

CHAPTER   XXIV. 

REMEDIES:  Extralegal  and  legal,  penal  and  civil, 
common  law  and  equitable,  ordinary  and  extraor- 
dinary remedies. 

CHAPTER   XXV. 

COURTS  AND  THEIR  JURISDICTION:  Covering 
the  subject  generally. 

CHAPTER    XXVL 

PROCEDURE:  In  general;  outlines  of  Common 
law,  equity,  code,  and  criminal  procedure. 


TRIALS: 


CHAPTER    XXVII. 

Early  forms,  trial  procedure,  evidence. 


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^Pe^att)  of  ©ama^e^; 

Author  of  "Bailments  and  Carriers." 


TABLE    OF   CONTENTS. 


CHAPTER  I. 

DEFINTTTONS  AND  GENERAL  PRINCIPLES: 
Definition,  nature  and  theory  of  damages; 
wrong  and  damage;  analysis  of  legal  wrongs; 
dJLSsification   of  damages. 

CHAPTER    II. 

NOMINAL  DAMAGES:  Definition  and  general  na- 
ture. 

CHAPTER   III. 

COMPENSATORY  DAMAGES:  Definition;  proxi- 
mate and  remote  consequences;  direct  and  con- 
sequential losses;  avoidable  consequences;  cer- 
tainty of  damages;  profits;  entirety  of  demand; 
past  and  future  losses;  elements  of  compensa- 
tion; aggravation  and  mitigation  of  damages; 
reduction   of   loss;     injuries    to   limited   Interests, 

CHAPTER   IV. 

BONDS,  LIQUIDATED  DAMAGES  AND  ALTERNA- 
TIVE CONTP^CTS:  Covering  the  subject  gen- 
erally. 

CHAPTER   V. 

INTEREST:  Definition;  as  a  debt  and  as  damages; 
interest  on  liquidated  and  unliquidated  de- 
mands; pn  overdue  paper, — contract  and  stat- 
ute  rate;    compound  Interest;     etc. 

CHAPTER   VI. 

VALUE:  Definition;  how  estimated;  market  value; 
pretium  affectionis;  value  -peculiar  to  owner; 
time  and  place  of  assessment;  highest  interme- 
diate  value;     etc. 

CHAPTER    VII. 

EXEMPLARY  DAMAGES:  In  general;  when  re- 
coverable;   liability  of  principal  for  act  of  agent; 

CHAPTER   VHI. 

PLEADING  AND  PRACTICE:  Allegation  of  dam- 
age, the  ad  damnum,  form  of  statement,  prov- 
ince of  court  and  jury,  etc 


CHAPTER  IX. 

BREACH  OF  CONTRACTS  FOR  SALE  OF  GOODS: 
Damages  in  action  by  seller  for  non-acceptance 
and  non-payment;  damages  in  action  by  buyer 
for  non-delivery,  breach  of  warranty,  and  as  for 
conversion. 

CHAPTER   X. 

DAMAGES  IN  ACTIONS  AGAINST  CARRIER: 
Carriers  of  goods, — refusal  to  transport,  non- 
delivery, injury  in  transit,  delay,  consequential 
damages;  carriers  of  passengers, — injuries  to 
passenger  exemplary  damages,  mental  suffering, 
delay,  wrongful  ejection,  etc. 

CHAPTER    XI. 

DAMAGES  m  ACTIONS  AGAINST  TELEGRAPH 
COMPANIES:  Actions  by  sender  and  by  receiv- 
er; proximate  and  certain,  remote  and  specula- 
tive damages;  notice  of  purpose  and  importance 
of  messa.ge;  cipher  messages;  avoidable  conse- 
quences;   exemplary  damages;    etc. 

CHAPTER   XII. 

DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT: 
Pecuniary  losses;  mental  suffering::  exemnlary 
damages;  injury  to  deceased;  medical  and  fu- 
neral expenses;  meaning  of  pecuniary,^are  and 
support,  prospective  gilts  and  inlieritances;  in- 
terest as  damages;  discretion  of  jury;  nominal 
damages,    etc 

CHAPTER    XIII. 

WRONGS  AFFECTING  REAL  PROPERTY:  Dam- 
ages for  detention  of  real  property;  trespass; 
nuisance;  waste;  contract  to  sell  real  property, 
— breach  by  vendor  or  vendee;  breach  of  cove- 
nants,   etc 

CHAPTER    XIV. 

BREACH  OF  MARRIAGE  PROMISE:  In  general, 
compensatory   damages,   exemplary  damages,  etc 


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IZ^  ^OTnfiocS  ^crice.) 


(^  ganb6ooft  of 

Cpe  Satt)  of  (Ueaf  (pvoptvi^* 


TABLE   OF   CONTENTS. 


Chapter  I. 

WHAT  IS  REAL  PROrERTY:  Real  and 
personal  property,  fixtures,  equitable  conver- 
BioD,  personal  interests  in  laud. 

Chapter   II. 

TENURE  AND  SEISIN. 

Chapter  HI. 

ESTATES  AS  TO  QUANTITY— FEE  SIM- 
PLE: Classification  of  estates,  freehold, 
fee-simple,  creation,  right  of  user  and  aliena- 
tion. 

Chapter  IV. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
ESTATES  TAIL:  Classes,  origin,  crea- 
tion, incidents,  duration,  tenant  in  tail  aft- 
er possibility  of  issue  extinct,  estates  tail  in 
the  United  States,  quasi  entail. 

Chapter  V. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
CONVENTIONAL  LIFE  ESTATES: 
Life  estates,  creation,  conventional  life  es- 
tates, incidents,  estates  per  autre  vie. 

Chapter  VI. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
LEGAL  LIFE  ESTATES:  Estate  during 
coverture,  curtesy,  dower,  homestead,  fed- 
eral homestead  act 

Chapter  VII. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
LESS  THAN  FREEHOLD:  Estates  for 
years,  letting  land  on  shares,  tenancies  at 
will,  tenancies  from  year  to  year,  letting  of 
lodgings,  tenancies  at  sufferance,  licenses. 

Chapter   VIH. 

ESTATES  AS  TO  QUALITY  ON  CONDI- 
TION—ON LIMITATION:  Estates  on 
condition,  estates  on  limitation,  base  fees. 

Chapter   IX. 

ESTATES  AS  TO  QUALITY  (Continued)— 
MORTGAGES:  Parties,  nature,  form, 
rights  and  liabilities  of  mortgagor  and  mort- 
gagee, assignment  of  the  equity  of  redemp- 
tion, assignment  of  the  mortgage,  priority 
of  mortgages  and  other  conveyances,  regis- 
tration, discharge  of  a  mortgage. 


Chapter  X. 

EQUITABLE  ESTATES:  Statute  of  Me«, 
classification  of  trusts, — express,  implied, 
resulting,  constructive, — incidents  of  equita- 
ble estates,  charitable  trusts. 

Chapter   XI. 

ESTATES  AS  TO  TIME  OP  ENJOYMENT 
—FUTURE  ESTATES:  Reversions,  possi- 
bilities of  reverter,  remainders,  rule  in  Shel- 
ley's Case,  future  uses,  springing  uses, 
shifting  uses,  executory  devises,  incidents 
of  future  estates. 

Chapter  XH. 

ESTATES  AS  TO  NUMBER  OP  OWNERS 
—JOINT  ESTATES:  Joint  tenancies,  ten- 
ancies in  common,  estates  in  coparcenary, 
estates  in  entirety,  estates  in  partnership, 
incidents  of  joint  estates,  partition. 

Chapter   XIII. 
INCORPOREAL  HEREDITAMENTS: 

Easements,  creation,  classification,  inci- 
dents, destruction,  rights  of  way,  highways, 
light  and  air,  lateral  and  subjacent  sup- 
port, party  walls,  easements  in  water,  prof- 
its a  prendre,  rents,  franchises. 

Chapter   XIV. 

LEGAL  CAPACITY  TO  HQLD  AND  CON- 
VEY REALTY:  Infants,  persons  of  un- 
sound mind,  married  women,  aliens,  corpo- 
rations. 

Chapter   XV. 

RESTRAINTS  .  ON  ALIENATION:  Re- 
straints imposed  by  law,  restraints  in  favor 
of  creditors,  restraints  imposed  in  creation 
of  estate. 

Chapter   XVI. 

TITLE:  Acquisition  of  title  by  state  and  pri- 
vate persons,  grant  from  state,  conveyan- 
ces, common-law  conveyances,  conveyances- 
under  statute  of  uses,  modern  statutory  con- 
veyances, registered  titles,  requisites  of 
deeds;  covenants  for  title,  seisin,  against 
incumbrances,  warranty,  further  assurance; 
estoppel,  adverse  possession,  accretion,  de- 
vise, descent,  judicial  process;  conveyance* 
under  licenses,  under  duress;  tax  titles,  em- 
inent domain. 


1  VOL.     589  PAGES.     $3.75,  DELIVERED. 


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(^  35<^nb6oo6  of 
C^e  Batj?  of  (pereonef  avti  ©omeefic  Q^ePafione, 


TABLE    OF 
PART  I. 

HUSBAND  AND  WIFE. 
Chapter   I. 

MARRIAGE:  Covering  definition  and  essen- 
tials; capacity  of  parties;  reality  of  con- 
sent; formalities  in  celebration;  annul- 
ment and  avoidance;  validating  acts;  con- 
flict of  laws,  etc. 

Cliapter   H. 

PERSONS  OP  THE  SPOUSES  AS  AF- 
FECTED BY  COVERTURE:  Covering 
rights  inter  se;  crimes  and  torts  of  married 
women;  crimes  and  torts  as  between  hus- 
band and  wife;  torts  against  married  wo- 
men; actions  for  alienation  of  affections; 
crim.  con.,  etc. 

Chapter  III. 

RIGHTS  IN  PROPERTY  AS  AFFECTED 
BY  COVERTURE:  Covering  wife's  earn- 
ings; wife's  choses  in  action  and  in  posses- 
sion; wife's  chattels  real;  administration 
of  wife's  estate;  equitable  and  statutory 
separate  estate;  community  property;  cur- 
tesy;   dower;    estates  by  the  entirety,  etc. 

Chapter  IV. 
CONTRACTS,  CONVEYANCES,  ETC., 
AND  QUASI-CONTRACTUAL  OBLI- 
GATIONS: Covering,  inter  alia,  husband's 
liability  for  wife's  necessaries,  antenuptial 
debts,  and  funeral  expenses;  wife  as  a  sole 
trader;  wife  as  husband's  agent;  convey- 
ances, sales,  and  gifts  by  the  wife,  etc. 

Chapter  V. 

WIFE'S  EQUITABLE  AND  STATUTORY 
SEPARATE  ESTATE:  Covering  their 
nature;  jus  disponendi;  power  to  charge  by 
contract,  etc. 

Chapter  VI. 

ANTENUPTIAL       AND       POSTNUPTIAL 

SETTLEMENTS:  Covering  the  subject 
generally,  including  marriage  as  a  consid- 
eration; the  statute  of  frauds;  validity 
against  creditors  and  purchasers,  etc. 

Chapter  VII. 

SEPARATION  AND  DIVORCE:  Covering 
agreements  for  separation;  jurisdiction  to 
grant  divorce;  grounds  for  divorce;  de- 
fenses in  actions  for  divorce;  legislative  di- 
vorce, etc. 

PART  II. 
PARENT  AND  CHILD. 
Chapter   VIII. 
LEGITIMACY,      ILLEGITIMACY,      AND 
ADOPTION:    Covering  legitimacy  of  chil- 
dren; adoption  of  children;  status  of  illegiti- 
mate children. 


CONTENTS. 

Chapter  IX. 

DUTIES  AND  LIABILITIES  OF  PAR- 
ENTS: Maintenance,  protection,  and  edu- 
cation of  child;  allowance  out  of  child's 
estate;  child  as  parent's  agent;  parent's  lia- 
bility for  crimes  and  torts  of  child,  etc. 

Chapter   X. 

RIGHTS  OF  PARENTS  AND  OF  CHIL- 
DREN: Right  to  custody;  service  and 
earnings  of  child;  correction  of  child; 
emancipation  of  children;  action  by  parent 
for  injuries  to  child;  gifts,  contracts,  and 
conveyances  between;  advancements;  duty 
to  support  parent;    domicile  of  child,  etc. 

PART  III. 

GUARDIAN  AND  WARD. 
Chapter   XI. 

GUARDIANS  DEFINED  —  SELECTION 
AND  APPOINTMENT:  Covering  natural 
guardians;  testamentary  guardians;  statu- 
tory guardians;  guardians  by  estoppel; 
guardians  of  insane  persons;  guardians  ad 
litem,  etc. 

Chapter  XII. 

RIGHTS,  DUTIES,  AND  LIABILITIES  OF 
GUARDIANS:  Right  to  custody  and  serv- 
ices of  ward;  maintenance  of  ward;  change 
of  ward's  domicile;  management  of  ward's 
estate;  foreign  guardians;  inventory  and 
accounts;  compensation  of  guardian;  trans- 
actions between  guardian  and  ward,  etc 

Chapter  XIII. 

TERMINA'TION  OF  GUARDIANSHIP  — 
ENFORCING  GUARDIAN'S  LIABILI- 
TY:   Covering  the  subject  generally. 

PART  IV. 

INFANTS,    PERSONS    NON    COMPOTES 

MENTIS,  AND  ALIENS. 

Chapter   XIV. 

INFANTS:  Covering  contracts  of  infants,  in- 
cluding ratification  and  disaffirmance;  lia- 
bilities for  necessaries,  etc.;  capacity  to 
hold  office,  to  make  a  will,  and  as  witness- 
es; liability  for  torts  and  crimes;  infants 
fU9  parties  to  actions,  etc. 

Chapter   XV. 

PERSONS  NON  COMPOTES  MENTIS 
AND  ALIENS:  Covering  insane  and 
drunken  persons,  their  contracts,  their  lia- 
bility for  torts  and  crimes  and  testament- 
ary capacity,  etc. 

PART  V. 

MASTER  AND  SERVANT. 
Chapter   XVI. 
CREATION  AND  TERMINATION  OP  RE- 
LATION:    Remedies    for    breach    of    con- 
tract;   rights  and  duties  and  liabilities  inter 
se  and  as  to  third  persons,  etc 


C1243 


1   VOLUME.    589  PAGES.     $3.75,  DELIVERED. 


WEST  PUBLISHING  COMPANY,  ST.  PAUL,  MINN. 

(17) 


(3n  f^  i^mfioofi  ^eries.) 


tbe  caw V." .  (B)cuu(ot6  atib  ^hmimBttdoxe 


By  $imon  6re(nleaf  ero$well, 


Anthor  of  •«  Electricity,** 
"Patent  Cases,"  eta 


TABLE  OF  CONTENTS. 


Ptrt !.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 
Chapter   I. 

DBFINITIONS  AND  DIVISION  OF  SUBJECT:  Ex- 
ecutors uid  Administrators  defined;  analysis  of 
book. 

Pari  II.— APPOINTMENT  AND  QUALIFICATIONS. 

Chapter   II. 

APPOINTMENT  IN  COURT:  Necessity  of  adminis- 
tration; necessity  of  appointment  by  court;  ju- 
risdiction; conclusiveness  of  decrees  of  probate 
courts,   etc  • 

Chapter  HI. 

PLACE  AND  TIME  OF  APPOINTMENT  AND  REQ- 
UISITES THEREFOR:  Place  of  appointment; 
property  necessary  to  give  Jurisdiction;  time  limit 
for  application. 

Chapter  IV. 

WHO  MAY  CLAIM  APPOINTMENT  A3  EXECU- 
TOR: Designation  In  will;  appointment  by  dele- 
gation; executor  of  executor;  non-aasignability 
of  office. 

Chapter  V. 

WHO  MAT  CLAIM  THE  RIGHT  TO  ADMINISTER: 
Principle  which  governs  the  right;  order  of  pre- 
cedenc«;  creditors;  preferences  among  kindred, 
etc 

Chapter  VI. 

DISQUALIFICATIONS  FOR  THE  OFFICE  OF  EX- 
ECUTOR OR  ADMINISTRATOR:  Infants,  mar- 
ried women,  idiots,  lunatics,  convicts,  corpora- 
tions; poverty  and  insolvency;  absolute  and  dis- 
cretionary Incompetency,  etc. 


Chapter  VII. 

ACCEPTANCE    OR    RENUNCIATION: 
Implied  renunciation. 


Express    or 


Chapter  VIII. 

PROCEEDINGS  FOR  APPOINTMENT  OF  EXECU- 
TORS AND  ADMINISTRATORS:      In  general. 

Chapter  IX. 

SPECIAL  KINDS  OF  ADMINISTRATIONS:  Admin- 
istration cum  testamento  annexo;  de  bonis  non; 
during  minority;  pendente  lite;  public  adminis- 
trator;   executor  de  son  tort,  etc 

Chapter  X. 

FOREIGN  AND  INTERSTATE  ADMINISTRATION: 
Validity  of  foreign  wills;  territorial  limit  of  va- 
lidity of  letters;  principal  and  ancillary  adminis- 
tration;   conflict  of  laws;    comity,  etc. 

Chapter  XI. 

JOINT  EXECUTORS  AND  ADMINISTRATORS:  Na- 
ture of  estate;  rights,  powers  and  llabliUles;  rem- 
«dlee  between,  etc 


Chapter  XII. 


ADMINISTRATION   BONDS: 
KeneraJly. 

I  Vol.    696  Pages. 
$3.75,  Net,  Delivered. 
C1395 


Corerlns  the  rabject 


Part  III.— POWERS  AND  DUTIES. 
Chapter  XIII. 

INVENTORY— APPRAISEMENT— NOTICE  OF  AP- 
POINTMENT:   Covering  the  subject  generally. 

Chapter  XIV. 

ASSETS  OF  THE  ESTATE:  What  are  assets;  fix- 
tures; emblements;  animals;  ownership  at  time  of 
dealh,   etc 

Chapter  XV. 

MANAGEMENT  OF  THE  ESTATE:  Rights  and  lia- 
bilities of  executors  or  administrators;  collection 
and  Investment  of  assets,  taxation,  etc 

Chapter  XVI. 

SALES  AND  CONVEYANCES  OF  PERSONAL  OR 
REAL  ASSETS:  Covering  sales  In  general,  sales 
of  land  to  pay  debts,  power  to  mortgage,   etc. 

Chapter  XVII. 

PAYMENT  OF  DEBTS  AND  ALLOWANCES— IN- 
SOLVENT ESTATES:  Covering  priority  of  debts, 
widow's  allowance,  expenses  of  funeral  and  last 
illness,  costs  of  administration;  presentation  and 
allowance  of  claims,  Insolvent  estates,  etc. 

Chapter  XVIII. 

PAYMENT  OF  LEGACIES:  Legacies  subordinate  to 
debts;  ademption  and  abatement  of  legacies; 
priority  between  legacies  and  contingent,  future 
or  unknown  debts;  payment  of  legacies.  Interest, 
etc. 

Chapter  XIX. 

DISTRIBUTION  OF  INTESTATE  ESTATES:  Order, 
time  and  mode  of  distribution;  rights  of  husband, 
widow  and  next  of  kin,  right  of  presentation, 
payment  of  distributive  share,  etc 

Chapter  XX. 

ADMINISTRATION  ACCOUNTS:  Time  and  manner 
of  accounting,  charges  and  allowances  in  account; 
commissions  and  compensation,   etc. 

Part  IV.— TERMINATION  OF  OFFICE. 

Chapter   XXI. 

REVOCATION  OF  LETTERS— REMOVAL— RESIG- 
NATION:   Covering  the  subject  generally. 

Pari  v.— REMEDIES. 

Chapter  XXII. 

ACTIONS  BY  EXECUTORS  AND  ADMINISTRA- 
TORS: Power  to  sue  before  probate  or  grant  of 
letters;  survival  of  actions;  actions  in  personal 
and  representative  capacity,  etc. 

Chapter  XXIIL 

ACTIONS  AGAINST  EXECUTORS  AND  ADMIN- 
ISTRATORS: Survival  of  actions;  particular  lia- 
bilities; attachment  and  garnishment;  Judgments, 
executions  and  other  proceedings;  order  of  liabil- 
ity of  assets;  suits  on  bonds,  etc. 

Chapter  XXIV. 

STATUTE  OF  LIMITATIONS— SET-OFF:  General 
and  special  statute  of  limitations,  aet-off,  etc 

Chapter  XXV. 

EVIDENCE  AND  COSTS:  Covering  the  subject 
generally. 


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€^t  Bat»  of  (prioa^e  Covpot<i(iotiti. 

By  Wn.  L.  CLARK.  Jr., 

Author  Of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 


TABLE  OF  CONTENTS. 


Chapter  I. 

OF  THE  NATURE  OF  A  CORPORATION: 
Definition  and  creation ;  limited  powers ;  attri- 
butes and  incidents:  corporation  as  a  person, 
citizen,  eta ;  kinds  ot  corporations,  etc. 

Chapter  II. 

CREATION  AND  CITIZENSHIP  OF  CORPO- 
RATIONS: Covering  the  subject  generally,  in- 
cluding power  to  create;  general  and  special 
laws;  ratification  of  claim  to  corporate  exist- 
ence ;  agreement  between  corporation  and  state 
— acceptance  of  charter;  agreement  between 
corporators  and  corporation ;  purpose  of  incorpo- 
ration; corporate  name,  residence,  and  citizen- 
ship of  corporation ;  extension  of  charter;  proof 
of  corporate  existence,  etc. 

Chapter  III. 

EFFECT  OF  IRREGULAR  INCORPORATION: 
Corporations  de  facto ;  estoppel  to  deny  corpo- 
rate existence ;  liability  of  stockholders  as  part- 
ners. 

Chapter  IV. 

RELATION  BETWEEN  CORPORATION  AND 
ITS  PROMOTER  S :  Liability  for  expenses  and 
services  of  promoters;  liability  on  contract  by 
promoters ;  liability  of  promoters  to  corporation 
and  stockholders,  etc. 

Chapter  V. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS: Express  and  implied  powers;  con- 
struction of  charter;  power  to  hold  realty;  con- 
tracts and  conveyances,  etc. 

Chapter  VI. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS (Continued) !    The  doctrine  of  ultra  vires. 

Chapter  VH. 

POWERS  AND  LIABILITIES  OP  CORPORA- 
TIONS (Continued):  Responsibility  for  torts 
and  crimes ;  contempt  of  court. 

Chapter  VIH. 

THE  CORPORATION  AND  THE  STATE: 
Charter  as  a  contract ;  police  power  of  the  state ; 
power  of  eminent  domain;  repeal  and  amend- 
ment oX  charter ;  taxation  of  corporation. 


Chapter  IX. 

DISSOLUTION  OF  CORPORATIONS:  How  ef- 
fected; equity  jurisdiction;  effect  of  dissolu- 
tion, etc. 

Chapter  X. 

MEMBERSHIP  IN  CORPORATIONS:  Capital 
stock  and  capital;  nature  of  corporate  shares; 
certificates  of  stock ;  subscriptions  to  stock ;  re- 
lease and  discharge  of  subscriber,  etc.,  covering 
the  subject  generally. 

Chapter  XI. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :  Right  to  inspect  books  and  papers;  right 
to  vote;  profits  and  dividends;  increase  of  cap- 
ital ;  preferred  stock ;  watered  and  bonus  stock ; 
action  by  stockholders  for  injuries  to  corpora- 
tion ;  expulsion  of  members,  eta 

Chapter  XII. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :    Ck)vering  transfer  of  shares. 

Chapter  XIII. 

MANAGEMENT  OF  CORPORATIONS— OFFI- 
CERS AND  AGENTS:  Powers  of  majority  of 
stockholders;  by-laws;  stockholders' meetings; 
election  and  appointment  of  officers  and  agents : 
powers  and  liabilities  of  officers  and  agents;  re- 
moval of  officers  and  agents,  eta,  covering  the 
subject  generally. 

Chapter  XIV. 

RIGHTS  AND  REMEDIES  OF  CREDITORS: 
Relation  between  creditors  and  the  corporation, 
covering,  inter  alia,  property  subject  to  execu- 
tion ;  assets  as  a  trust  fund  for  creditors ;  fraud- 
ulent conveyances;  assignment  for  benefit  of 
creditors;  preferences;  dissolution,  injunctioi^ 
and  receivers;  relation  between  creditors  and 
stockholders,  covering,  inter  alia,  statutory  lia- 
bility of  stockholders;  contribution  between 
stockholders,  etc. ;  relation  between  creditors 
and  officers,  covering  preferences  to  officers  who 
are  creditors ;  statutory  liability  of  officers. 

Chapter  XV. 

FOREIGN  CORPORATIONS :  Covering  the  sub- 
ject generally. 

APPENDIX. 

The  logical  conception  of  a  corporatioa. 


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TABLE  OF  CONTENTS. 


Chapter  I. 

DEFINITION  AND  ESTABLISHMENT  OF 
RELATION:  What  constitutes  a  partuer- 
ship;  tests  of  intention;  sharing  profits;  pro- 
moters of  corporations;  defective  corpora- 
tion; delectus  personarum;  subpartnerships; 
holding  out,  etc. 

Chapter   II. 

KINDS  OF  PARTNERSHIPS  AND  PART- 
NERS: Classification  of  partnerships  and 
partners;  universal,  general,  and  special  part- 
nerships; limited  partnerships;  joint-stock 
companies;  mining  partnerships;  trading 
and  nontrading  partnerships,  etc. 

Chapter  III. 

CHARACTERISTIC  FEATURES         OF 

PARTNERSHIPS:  Legal  and  mercantile 
view  of  a  firm;  partnership  name;  partner- 
ship property;  partnership  capital;  shares  in 
partnerships,  etc. 

Chapter  IV. 

IMPLIED  RIGHTS  AND  LIABILITIES  IN- 
TER SE:  Participation  in  management; 
rights  and  powers  of  majority;  duty  to  ex- 
ercise care,  skill,  and  good  faith;  right  to 
compete  with  firm;  compensation  for  serv- 
ices; interest  on  balances;  partner's  lien; 
division  of  profits,  etc. 

Chapter  V. 

ARTICLES  OF  PARTNERSHIP:  Purpose 
and  effect;  rules  of  construction;  usual 
clauses  in  articles,  etc.;  covering  the  subject 
generally. 

Chapter  VI. 

RIGHTS  AND  LIABILITIES  AS  TO 
THIRD  PERSONS:  Express  and  implied 
authority  of  partner  to  bind  firm;  particu- 
lar powers;  liability  of  partners  to  third 
persons;  Incoming  partners;  assumption  of 
debts;  rights  in  firm  and  separate  property, 
etc 


Chapter  VU.  ' 

ACTIONS  BETWEEN  PARTNERS:  Action 
on  partnership  claim  or  liability,  at  law,  in 
equity,  or  under  the  code;  actions  between 
firms  with  a  common  member;  actions  on 
individual  obligations;  equitable  actions  in 
general;  accounting  and  dissolution;  spe- 
cific performance;   injunction;  receivers,  etc. 


Chapter   VIII. 

ACTIONS  BETWEEN  PARTNERS  AND 
THIRD  Pl^iiSONS:  Parties  in  actions 
by  and  against  partners;  effect  of  changes 
in  firm;  disqualification  of  one  partner  to 
sue;    action  in  firm  name,  etc. 


Chapter   IX. 

DISSOLUTION:  Causes  of  dissolution;  part- 
nerships for  a  definite  and  indefinite  time; 
causes  subject  to  stipulation;  causes  not  sub- 
ject to  stipulation;  causes  for  which  a  court 
will  decree  a  dissolution;  consequences  of 
dissolution  as  to  third  persons  and  as  to 
partners. 

Chapter   X. 

LIMITED  PARTNERSHIPS:  Covering  the 
subject  exhaustively,  including,  inter  alia, 
definition  and  establisliment  of  relation; 
general  and  special  members;  certificate; 
contribution  of  general  and  special  partners; 
name;  sign;  rights  and  liabilities;  with- 
drawal, alteration,  and  interference;  insol- 
vency; termination  of  relation;  change  from 
limited  to  general  liability;   actions,  etc 


Chapter    XI. 

JOINT-STOCK  COMPANIES:    Definition  and 
nature;    transfer  of  shares;   powers  of  mem- 
bers and  officers;    rights  and  liabilities;   ac- 
I        tions,  etc. 


I  Volume,  6i6  pages.     $3.75,  net,  delivered. 


West  Publishing  Co  ,  St.  Paul,  Minn. 

C1471  <^) 


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(^  j^anbBooK  of 


(Sc|ui(g  (pfeabing* 


Author  of   "  Shipman's  Common-Law  Pleading.** 


TABLE    OF    CONTENTS. 


Chapter  I. 

EQUITY  PLEADING  IN  GENERAL:  Cov- 
ering nature  and  scope  of  pleadings  in  eq- 
uity. 

Chapter  II. 

PARTIES:  Giving  general  rules,  and  covering 
classification  of  parties  as  necessary,  proper 
but  not  indispensable,  formal,  and  parties 
with  separable  interests;  parties  complain- 
ant and  respondent;   joinder,  etc. 

Chapter  III. 

PROCEEDINGS  IN  AN  EQUITABLE 
SUIT:  Indicating  the  steps  usually  taken 
and  the  method  of  procedure,  as  the  bill, 
appearance,  proceedings  on  default;  the 
modes  of  defense,  by  disclaimer,  demurrer, 
plea,  or  answer;  the  replication;  interlocu- 
tory proceedings,  as  amendment,  injunc- 
tions, production  of  documents,  interven- 
tion; the  evidence,  hearing,  and  decree;  the 
correction,  reversal,  or  enforcement  of  de- 
crees, etc. 


Chapter  IV. 

BILLS  IN  EQUITY:  Covering  definition  and 
classification,  and  discussing  original  bills, 
and  bills  not  original,  with  a  summary  of 
the  general  rules  covering  the  bill,  etc. 

Chapt^er  V. 

THE  DISCLAIMER:  Definition,  nature,  and 
use. 

Chapter  VI. 

DEMURRER:  Definition;  form  of  demurrer, 
and  grounds  therefor;  orders  sustaining  or 
overruling  demurrer,  etc. 

Chapter  VII. 

THE  PLEA:  Definition,  nature,  and  office  of 
pleas,  grounds  for  pleas,  their  form,  support- 
ing answers,  etc. 

Chapter  VHI. 

THE  ANSWER:  Nature  and  office,  substance 
and  effect,  of  the  answer,  and  the  character- 
istics thereof. 

Chapter  IX. 

THE  REPLICATION. 


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Author  of  "Common-Law  Pleading,"  etc. 


TABLE    OF    CONTENTS. 


CHAPTER   I. 

INTRODUCTORY:     Definitions;     origin,   place 

and  function  of  the  law  of  evidence,  etc. 

CHAPTER  II. 
JUDICIAL  NOTICE:    The  doctrine  in  general; 
facts  which  may  or  must  be  noticed. 

CHAPTER   III. 

QUESTIONS  OF  LAW  AND  QUESTIONS 
OF  FACT:  Definitions;  province  of  court 
and  jury. 

CHAPTER   IV. 

BURDEN  OP  PROOF^  Burden  of  proof  never 
shifts;  burden  of  proceeding  may  shift;  ver- 
dict, etc. 

CHAPTER  V. 

PRESUMPTIONS:  Presumptions  as  rules  of 
law;  prima  facie,  conclusive,  spurious,  and 
conflicting  presumptions. 

CHAPTER   VI. 

ADMISSIONS:  Direct  and  indirect  admissions; 
admissibility;  civil  and  criminal  cases;  ef- 
fect of  admission,  etc. 

CHAPTER   VII. 

CONFESSIONS:  Defined;  voluntary  or  under 
influence;  may  be  explained;  evidence  there- 
from, etc. 

CHAPTER  VIII. 

MATTERS  EXCLUDED  AS  UNIMPOR- 
TANT, OR  AS  MISLEADING,  THOUGH 
LOGICALLY  RELEVANT:  Logical  and  le- 
gal relevancy,  rule  excluding;  classification 
of  matter;  proof  of  diverse  matters  consid- 
ered. 


CHAPTER  IX. 
CHARACTER:    General  rule; 
how  proved,  etc. 


when  material; 


CHAPTER   X. 

OPINION  EVIDENCE:  Matter  of  opinion  dis- 
tinguished from  matter  of  fact;  general  rule; 
exceptions;  matters  forming  subject  of  ex- 
pert opinion,  etc. 

CHAPTER   XI. 

HEARSAY:  General  rule;  exceptions;  real 
and  appaient;  classes  of  statements  admit- 
ted because  of  ttie  difficulty  of  other  proof. 

CHAPTER   XII, 

WITNESSES:  Rules  excluding  witnesses;  per- 
sons excluded;  privilege  distinguished  from 
disqualification;    privileged   persons. 

CHAPTER   XIII. 

EXAMINATION  OF  WITNESSES:  Ordinary 
method;  refreshing  memory;  direct  and 
cross  examination;  leading  questions;  im- 
peachiDg  witness,  etc. 

CHAPTER   XIV. 

WRITINGS:  Bf  st  evidence  rule;  production  of 
documents;  authentication  of  documents; 
proof  of  handwriting;  evidence  affecting  the 
contents  of  documents,  etc. 

CHAPTER  XV. 

DEMURRERS  TO  EVIDENCE:  Definition; 
when  joinder  compelled;  final  form,  etc. 


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(^  ganl>6ooft  of 

^Pe  Saw  of  (Uegfi^ence^ 


TABLE   OF  CONTENTS. 


Chapter   I. 

DEFINITION  AND  ESSENTIAL  ELE- 
MENTS :  Considering  also  proximate 
cause ;  efl5cient,  intervening,  or  co-operating 
cause,  etc. 

Chapter   II. 

CONTRIBUTORY  NEGLIGENCE:  Defini- 
tion and  general  rule ;  degree  of  care  ;  as- 
sumption of  risk  and  legal  status  of  plain- 
tiff ;  plaintiff's  negligence ;  negligence  of 
third  persons ;  imputed  negligence ;  phys- 
ical condition  as  an  element ;  evidence, 
pleading,  and  questions  of  fact. 

Chapter   III. 

LIABILITY   OF   MASTER   TO    SERVANT: 

Duty  of  master,  as  to  appliances,  selecting 
servants,  rules,  etc. ;  limitation  of  master's 
duty ;  ordinary  risks,  known  dangers,  fel- 
low servants ;  concurrent  and  contributory 
negligence. 

Chapter   IV. 

LIABILITY  OF  MASTER  TO  THIRD  PER- 
SONS :  Relationship ;  independent  con- 
tractor; willful  torts  of  servants,  and  inde- 
pendent torts. 

Chapter   V. 

COMMON  CARRIERS  OF  PASSENGERS : 

The  relation  of  passenger  and  carrier ;  ter- 
mination of  relation  ;  who  are  passengers ; 
the  contract,  ticket,  compensation,  etc. 

Chapter    VI. 

CARRIERS  OF  GOODS  :  Definition  ;  liabili- 
ty for  loss  or  damage ;  liability  for  delay ; 
contracts  limiting  liability  in  special  states; 
limiting  time  and  manner  of  making  claims ; 
construction  of  limiting  contracts ;  actual 
notice ;  special  classes  of  goods,  as  live 
stock  and  baggage ;  beginning  and  termina- 
tion of  liability  ;    excuses  for  nondelivery. 


Chapter   VH. 

OCCUPATION  AND  USB  OF  LAND  AND 
WATER:  Duties,— general  rule;  lateral 
support ;  dangerous  t<"emises  ;  landlord  and 
tenant,  and  condition  of  rented  premises ; 
water  courses  ;  dams ;  obstruction  of  navi- 
gable streams,  etc. 

Chapter   VIII. 

DANGEROUS  INSTRUMENTALITIES : 

Railroads  ;  degree  of  care  exacted  ;  signals  ; 
care  required  of  persons ;  collisions  with 
persons  and  with  animals ;  fires ;  inten- 
tional, accidental,  and  railroad  fires ;  ani- 
mals ;  communicating  disease  ;  firearms,  ex- 
plosives, poisons,  etc. 

Chapter   IX. 

NEGLIGENCE  OF  ATTORNEYS,  PHYSI- 
CIANS,     AND      PUBLIC      OFFICERS: 

Negligence  of  attorneys ;  damage  essential 
to  liability  ;  negligence  of  physicians  ;  bur- 
den of  proof,  evidence,  pleading,  etc. ;  negli- 
gence of  public  and  governmental  officers, 
ministerial  officers,  sheriffs  and  constables, 
notaries  public,  clerks  of  court,  and  registers 
of  deeds. 

Chapter    X. 

DEATH  BY  WRONGFUL  ACT  :  Right  of  ac- 
tion ;  instantaneous  death,  proximate  cause 
of  death,  beneficiaries  ;  damages  ;  pleading 
and  evidence ;  limitation  of  commencement 
of  action. 

Chapter   XI. 

NEGLIGENCE  OF  MUNICIPAL  CORPO- 
RATIONS :  Public  and  private  corpora- 
tions ;  right  of  action ;  liability  for  inju- 
ries ;  alteration  of  grades ;  acts  of  officers 
or  agents  ;  acts  ultra  vires  ;  judicial  or  leg- 
islative duties ;  conflagrations  and  destruc- 
tion by  mobs  ;  public  health  and  sanitation  ; 
quasi  municipal  corporations. 


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Editor  3d  Edition  Collier  on  Bankruptcy,  Co-Editor  American  Bankruptcy  Reports, 
Eaton  and  Greene's  Negotiable  Instruments  Law,  etc. 


TABLE  OF  CONTENTS. 


ORIGIN  AND  HISTORY:  Showing  distinc- 
tioa  between  law  and  equity,  equity  juris- 
diction in  the  United  States,  etc. 

GENERAL  PRINCIPLES  GOVERNING 
THE  EXERCISE  OF  EQUITY  JURIS- 
DICTION: Covering  adequate  remedy  at 
law,  multiplicity  of  suits,  etc. 

MAXIMS:  With  a  separate  discussion  of 
each. 

PENALTIES  AND  FORFEITURES:  Cov- 
ering rules  governing  the  determination  as 
to  liquidated  damages  or  penalty,  statutory 
penalties  and  forfeitures,  etc. 

PRIORITIES  AND  NOTICE:  Covering 
equal  and  superior  equities,  notice,  etc. 

BONA  FIDE  PURCHASERS  WITHOUT 
NOTICE:  The  doctrine  and  its  applica- 
tion. 

EQUITABLE  ESTOPPEL:  Essential  ele- 
ments, operation  of  estoppel,  etc. 

ELECTION:  The  doctrine  and  its  applica- 
tion;   ascertainment  of  values,  etc. 

SATISFACTION    AND    PERFORMANCE: 

Satisfaction    of   debts,    of    legacies,    of    por- 
tions, etc.;    parol  or  extrinsic  evidence,  etc. 

CONVERSION   AND   RECONVERSION: 

The  doctrine;    effect  of  conversion;    total  or 
partial   failure  of  purposes. 

ACCIDENT  as  a  ground  of  equitable  relief. 

MISTAKE  as  a  ground  of  equitable  relief. 


FRAUD  as  a  ground  of  equitable  relief;  ac- 
tual and  constructive  fraud,  etc. 

EQUITABLE  PROPERTY:  Trusts  gener- 
ally;  express  trusts,  etc. 

IMPLIED  TRUSTS:  Resulting  and  con- 
structive trusts,  etc. 

POWERS,  DUTIES,  AND  LIABILITIES 
OF  TRUSTEES:  Acceptance;  breach  of 
trust;    accounts,  etc. 

MORTGAGES:  The  common-law  and  equi- 
table doctrines  as  to  mortgages  and  pledges. 

EQUITABLE  LIENS:  Arising  from  consid- 
erations of  justice,  from  charges  by  will  or 
deed,  etc. 

ASSICfNTMENTS:  Of  choses  in  action,  pos- 
sibilities and  expectancies,  etc. 

REMEDIES  SEEKING  PECUNIARY  RE- 
LIEF: Contribution,  exoneration,  defense, 
etc. 

SPECIFIC  PERFORMANCE:  Contracts 
for  same,  defenses,  variance,  etc. 

INJUNCTION:  Classification,  with  discus- 
sion. 

PARTITION.  DOWER,  AND  ESTABLISH- 
MENT OF  BOUNDARIES:  Jurisdiction, 
procedure,  etc. 

REFORMATION,  CANCELL.\TION,  AND 
CLOUD  ON  TITLE:  Parties,  evidence, 
statute  of  frauds,  etc. 

ANCILLARY  REMEDIES:  Rules  respect- 
ing discovery,  examination  of  witnesses,  in- 
terpleader, receivers,  etc 


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TABLE  OF  CONTENTS. 


The  Origin  and  History  of  the  Admiralty,  and 
its  Extent  in  the  United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Sub- 
ject Matter. 

General  Average  and  Marine  Insurance. 

Bottomry    and    Respondentia ;     and    Liens   for 
Supplies,  Repairs,  and  Other  Necessaries. 

Stevedores'   Contracts,   Canal   Tolls,    and   Tow- 
age Contracts, 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act 
of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort 

The  Right  of  Action  in  Admiralty  for  Injuries 
Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circum- 
stances, and  General  Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited 
Liability  Act. 


Rights  and  Liabilities  of  Owners  as  Affected  by 
the  Limited  Liabilitv  Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes   Regulating   Navigation,    Including: 

(1)  The  International  Rules. 

(2)  The   Rules   for   Coast   and    Connecting 

Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High 

Seas  and  Coast  Waters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(6)  The  Act  of  March  3,  1SD9,  as  to  Ob- 

structing Channels. 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 
(2>  The  Act  of  June  26,  1884. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulat- 

ing Bonding  of  Vessels. 

5.  Statutes  Regulating  Evidence  in  the  Federal 

Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


1  volume,  503  Pages.     $3.75  delivered. 


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(^  f  anbBooft  of  t^t 

Jlatt)  of  (principaf  anb  dtlgenf. 

Author  of  Death  by  Wrongful  Act,  Law  of  Sales,  etc 


TABLE  OF  CONTENTS. 


Part   I.    IN    GENERAL. 

Chap. 

I.  Introductory — Definitions. 
II.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

III.  Same  (continued) — Ratification. 

IV.  What  Acts  Can  be  Done  by  Agent — Illegality — Capacity  of  Parties — 

Joint  Principals  and  Agents. 
V.  Delegation  by  Agent — Subagents. 
VI.  Termination  of  the  Relation. 
VII.  Construction  of  Authority. 

Part  II.  BIGHTS  AND  LIABILITIES 
BET^VEEN  PBINCIPAL  AND  THIRD 
PERSON. 

VIII.  Liability  of  Principal  to  Third  Person — Contract. 

IX.  Same  (continued). 

X.  Admissions  by  Agent — Notice  to  Agent. 

XI.  Liability  of  Principal  to  Third  Person — Torts  and  Crimes. 

XII.  Liability  of  Third  Person  to  Principal. 

Part  ni.  BIGHTS  AND  LIABILITIES 
BETWEEN  AGENT  AND  THIRD  PER- 
SON. 

XIII.  Liability  of  Agent  to  Third  Person  (including  parties  to  contracts). 

XIV.  Liability  of  Third  Person  to  Agent 

Part  IV.  RIGHTS  AND  LIABILITIES 
BETWEEN  PRINCIPAL  AND  AGENT. 

XV.  Duties  of  Agent  to  Principal. 
XVI.  Duties  of  Principal  to  Agent 
Appendix. 

WEST  PUBLISHING  CO.,  St  Paul,  Hinn 

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4-> 


^^e  &m  of  (Biffe. 


^ 


•!•♦> 


11  By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University   Law  SchooL 


^4  IN  THE  HORNBOOK  SERIES.  $3.75  DELIVERED. 

I? 

♦*♦•> 


%t  TABLE  OF  CONTENTS. 

11  Chap. 

*:**:*  I.  History  of  Wills — Introduction. 

i^  2.  Form  of  Wills. 

'XX  3.  Nuncupative,  Holographic,  Conditional  Wills.. 

%\  4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agreement. 

'H*  5-  Who  may  be  a  Testator. 

•j**:*  6.  Restraint  upon  Power  of  Testamentary  Disposition — Who  may 

X%  be  Beneficiaries — What  may  be  Disposed  of  by  WilL 

XX  7.  Mistake,  Fraud,  and  Undue  Influence. 

!0«  8.  Execution  of  Wills. 

*4i*  9.  Revocation  and  Republication  of  Wills, 

*}f^  10.  Conflict  of  Laws, 

4%  II.  Probate  of  Wills. 

y  * 

!i*X  12.  Actions  for  the  Construction  of  Wills. 

XX 

•!-|«  13.  Construction  of  Wills — Controlling  Principles, 

•!♦•!♦  14.  Construction-;-Description  of  Subject-Matter. 

1v«  ^5-  Construction — Description  of  Beneficiary. 

yX  16.  Construction — Nature  and  Duration  of  Interests. 

yX 

^X  17.  Construction — ^Vested  and  Contingent   Interests — Remainders— 

♦♦.•!♦  Executory  Devises. 

•!•♦?  18.  Construction — Conditions. 
»♦.♦!♦ 

♦{♦•:*  19.  Construction — ^Testamentary  Trusts  and  Powers. 

•♦•*:*  20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

*:*!♦!  — Lapsed  and  Void — Abatement — Ademption — Advancements. 

*»*.:♦  21.  Legacies  Charged  upon  Land  or  Other  Property. 

*<0  22.  Payment  of  the  Testator's  Debts. 

♦t  2-\.  Election. 

24-  Rights  of  Beneficiaries  not  Previously  Discussed. 


04370  (27) 


iZU  J5<^rn6ooft  ^erice.) 


Federal    Jurisdiction 
and    Procedure 


By  ROBE.RT   M.  HUGHES. 

of  the  Norfolk  Bar;  author  of  "Hughes  on  Admiralty,"  and  lecturer 
at  the  George  Washington  University  Law  School. 


TABLE    OF    CONTENTS. 


Introduction — What  It  Comprehonds. 
The   District  Court  —  Its  Criminal   Juris- 
diction and  Practice. 
Same — Continued. 
The  District  Court — Criminal  Jurisdiction 

— Miscellaneous   Jurisdiction. 
The  District  Court — Bankruptcy. 
6-7-8.     Same — Continued. 

9.    The    District   Court — Miscellaneous    Juris- 
diction. 
10.    The   Circuit  Court — Original   Jurisdiction. 
11-12.    Same — Continued. 

13.    The    Circuit   Court  —  Jurisdiction    by   Re- 
moval. 
14-15.    Same — Continued. 


IG. 


17. 


18. 


19. 

20. 

21. 
22. 


The  Circuit  Court — Jurisdiction  by  Re- 
moval— Original  Jurisdiction  of  the  Su- 
preme Court  —  Other  Minor  Courts  of 
Oriffinal  Jurisdiction. 

Procedure  in  the  Ordinary  Federal  Courts 
of  Original  Jurisdiction — Courts  of  Law. 

Procedure  in  the  Ordinary  Federal  Courts 
of  Original  Jurisdiction  —  Courts  of 
Equity. 

Same — Continued. 

Appellate  Jurisdiction — The  Circuit  Court 
of  Appeals. 

Appellate  Jurisdiction  —  The  Supreme 
Court. 

Procedure  on  Error  and  Appeal. 


The  U.  S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 

Courts  of  Equity  of  the  United  States  are 

given  in  an  Appendix. 


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^■^■IHI^MWM^MS^^BtfBMtfi 


3n  t^e  ^oxnioo^  ^zxm* 


public  Corporations 

By  HENRY  H.  INGERSOLL,  LL.  D., 
Dean  of  the  University  of    Tennessee  School    of   Law. 


/zf 


PART  I. 

QUASI  CORPORATIONS. 

Chap. 

I. 

Nature,  Creation,  Classification. 

II. 

Quasi    Corporations — Liabilities,    Ele- 

ments, Counties,  Property,  etc. 

III. 

Same — Continued. 

IV. 

Same — Continued. 

PART  II. 

MUNICIPAL  CORPORATIONS. 

V. 

Municipal   Corporations. 

VI. 

Their    Creation  —  How  —  By    what 

Bodies  —  Subject    to    what    Restric- 

tions, etc. 

VII. 

Their  Alteration  and  Dissolution. 

VIII. 

The  Charter. 

IX. 

Legislative  Control. 

X. 

Proceedings  and  Ordinances. 

XI. 

Officers,  Agents,  and  Employes. 

XII. 

Contracts. 

XIII. 

Improvements. 

XIV. 

Police  Powers  and  Regulations. 

XV. 

Streets,     Sewers,    Parks,    and    Public 

Buildings. 

XVI. 

Torts. 

XVII. 

Debts,   Funds,   Expenses,   and   Admin- 

istration. 

XVIII. 

Taxation. 

XIX. 

Actions. 

PART  III. 

QUASI  PUBLIC  CORPORATIONS. 

XX. 

Quasi  Public  Corporations. 

XXI. 

Railroads. 

XXII. 

Electric  Companies. 

XXIII. 

Water  and  Gas  Companies. 

XXIV. 

Other  Quasi  Public  Corporations. 

>e/ 


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Qlest  publishing  Co.,  St.  paul,  jMinn. 


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(3n  ik  JgornBooil  ^cnce.) 


A  Handbook  on  the  Law  of 

INSURANCE, 


By  WILLIAM    RE^YNOLDS    VANCE, 

Professor  of  La'wr  in  the  George  Washington  University. 

The  principal  object  of  this  treatise  is  to  give  a  consistent 
statement  of  logically  developed  principles  that  underlie  all 
contracts  of  insurance,  with  subsidiary  chapters  treating  of 
the  rules  peculiar  to  the  several  different  kinds  of  insurance. 
Special  attention  has  been  given  to  the  construction  of  the 
standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the 
much  desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover,  — 


Historical  and  Introductory. 

Nature  and  Requisites  of  Con- 
tract. 

Parties. 

Insurable  Interest. 

Making  the  Contract. 

The  Consideration. 

Consent  of  the  Parties  ~  Con- 
cealment. 

Consent  of  the  Parties  —  War- 
ranties. 


Agents  and  Their  Powers. 

Waiver  and  Estoppel. 

The  Standard  Fire  Policy. 

Terms  of  the  Life  Policy-. 

Marine  Insurance. 

Accident  Insurance. 

Guaranty,   Credit^  and  Liability 

Insurance. 
Appendix. 


1  volume,  683  pages.     $3.75  delivered. 


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Principles  and  Precedents 

The  following  letter  expresses  so  pithily  the 
present  tendencies  in  the  use  of  law  books  that  we 
gladly  print  it  in  full. 

S.  B.  POUND, 

ROSCOE  POUND, 

ATTORNEYS   AT   LAW. 


Rooms  125.  126,  127. 
Burr  Block. 


Lincoln,  Neb.,  November  6th,  1896. 


West  Publishing  Co.,  St.  Paul,  Minn. 
Gentlemen: 

I  regard  the  plan  of  your  Hornbook  Series  as  a  very  happy  one. 
The  tendency  has  been  very  marked  for  some  years  to  make  text  books 
little  more  than  unwieldy  digests.  Such  text  books  are  soon  obsolete, 
and  the  expense  of  new  editions  is  large.  The  rapid  development  of 
digest  making  cannot  fail  to  result  in  superseding  the  text-book  digest 
by  the  digest  pure  and  simple.  With  your  Century  Digest  when  it 
appears,  and  the  Annuals,  there  will  be  no  need  for  the  ordinary  text 
book.  But  for  this  very  reason  there  will  be,  and  there  now  is,  a 
greater  need  for  such  books  as  those  of  the  Hornbook  Series.  For  au- 
thorities and  cases  in  point  we  must  go  to  the  digests;  but  in  order  to 
be  sure  that  we  are  right  before  we  go  ahead,  we  must  have  some  ideas 
as  to  what  we  are  to  look  for.  I  have  found  several  of  the  Hornbooks 
of  great  use  for  this  purpose. 

You  are  also  to  be  congratulated  upon  the  writers  whom  you  have 
chosen  to  do  the  work.  Several  who  bid  fair  to  take  very  high  rank 
among  legal  authors  have  made  their  first  appearance  as  contributors 
to  the  series. 

While  lawyers  have  been  debating  how  to  reform  official  reporting, 
you  have  made  the  decisions  of  all  our  courts  accessible  to  the  pro- 
fession at  comparatively  slight  expense.  While  critics  are  deploring 
the  degeneration  of  text  books,  as  they  deem  it,  you  are  again  coming 
to  our  assistance  by  providing  text  books  that  combine  scientific  treat- 
ment with  practical  usefulness.  The  profession  require  the  former  as 
well  as  the  latter,  but  in  a  busy  age  the  latter  is  an  imperative  necessity. 

Yours  very  truly, 

ROSCOE  POUND. 

CI  299  (31) 


''The  ideal  legal  text-book  of  to-day  is  not 
so  much  one  that  enables  the  busy  lawyer  to 
find  authorities — the  dio^ests  and  encyclope- 
dias do  this — as  one  that  refreshes  his  mmd 
on  the  fundamental  principles  of  law  that 
underlie  his  case  *  *  *  The  Hornbook  Se- 
ries offers  the  practitioner  a  most  convenient 
opportunity  to  quickly  review  the  main- 
springs of  the  law  having  relation  to  the 
subject  in  his  mind  at  any  particular  time." 

—  Central  Law  Joiirnal, 


**Too  much  cannot  be  said  in  commen- 
dation of  that  feature  peculiar  to  the 
Hornbook  Series,  to  wit,  concisely  stat- 
ing the  leading  principles  in  black-letter 
type.  It  not  only  furnishes  the  lawyer 
with  the  most  convenient  method  of  quick- 
ly reviewing  the  general  principles  of  a 
subject,  but  it  tends  to  insure  careful  and 
accurate  statement  on  the  part  of  the  au- 
thor."—  Virginia  Law  Register, 

C4S20a 


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